Ved Laura Horvat Aug 2 4 2009 Respondents

IN THE SUPREME COURT OF OHIO O8/01NpL

STATE OF OHIO ex rel., CAMBRIDGE HOME HEALTH CASE NO. 2008-1464 CARE, INC./PRIVATE ORIGINAL ACTION IN MANDAMUS RELATOR,

vs.

THE INDUSTRIAL COMMISSION OF OHIO and VED LAURA HORVAT AUG 2 4 2009 RESPONDENTS. CLERK OF COURT SUPREME COURT OF OHIO

RELATOR'S BRIEF IN SUPPORT OF PETITION FOR WRIT OF MANDAMUS

MICHAEL J. REIDY (0012603) CHARISSA D. PAYER (0064452) MILLISOR & NOBIL CO., L.P.A. ASSISTANT ATTORNEY GENERAL 9150 South Hills Boulevard, Suite 300 150 East Gay St., 22"d Fl. Broadview Heights, OH 44147 Columbus, OH 43215 (440) 838-8800 - Telephone (614) 728-3043 - Telephone (440) 838-8805 - Fax (614) 728-9535 - Fax [email protected] cpaye r@ag. state. oh. us

Counsel for Relator, Cambridge Home Counsel for Respondent, Health Care, Inc./Private Industrial Commission of Ohio

MARK M. STURIK (0000377) THOMAS C. MAYS & ASSOCIATES 1370 Ontario Street, Suite 1520 Cleveland, OH 44113 (216) 475-0725 LRD

Counsel for Respondent-Claimant, Laura Horvat AuG 2 4 N09 CLERK OF COURT SUPREME COURT OF OHIO TABLE OF CONTENTS ... TABLE OF AUTHORITIES ...... ui

STATEMENT OF FACTS ...... 1

LAW AND ARGUMENT ...... 4

1. PROPOSITION OF LAW NO. 1 :...... 4

A Loss of Use Award in a Workers' Compensation Claim Cannot be Based Upon a Functional Capacities Evaluation Conducted by a Non- Physician Physical Therapist.

A. The Staff Hearing Officer Solely Relied Upon the FCE Performed by a Physical Therapist ...... 4

B. A Physical Therapist is Not a Physician Under Ohio Workers' Compensation Law ...... 4

C. Only Determinations as to the Extent of a Disability Made by a Licensed Physician are Considered Evidence Upon Which a Hearing Officer May Rely ...... 5

II. PROPOSITION OF LAW NO. 2 :...... 9

The Boiler Plate Language in a Workers' Compensation Record of Proceedings that "All Proof On File was Reviewed and Considered" Cannot be the Basis for a Scheduled Loss Award.

CONCLUSION ...... 11

CERTIFICATE OF SERVICE...... 13

APPENDIX ...... Appendix Page

Respondent Industrial Commission's Record of Proceedings (DHO) dated May 15, 2008 denying the application for loss of use of the right hand ...... Appx 1

Respondent Industrial Commission's Record of Proceedings (SHO) dated June 13, 2008 granting the application for loss of use of the right hand ...... Appx 3 Respondent Industrial Commission's Order dated July 5, 2008 refusing Relator's appeal ...... Appx 5

Ohio Admin. Code 4123-3-15 ...... Appx 7

Ohio Admin. Code 4123-5-18 ...... Appx 10

Ohio Admin. Code 4123-6-01 ...... Appx11

Ohio Rev. Code 4121.32 ...... Appx 15

Ohio Rev. Code 4123.57 ...... Appx 17

Ohio Rev. Code 4755.40 ...... Appx 22

Hearing Officer's Manual, Memo E2 ...... Appx 24

Hearing Officer's Manual, Memo M5 ...... Appx 25

Unreported decisions (in alphabetical order) ...... Appx 26

11 TABLE OF AUTHORITIES

STATE CASES

Burress v. Park Cycle & Marine, Inc. (Nov. 7, 1988), Stark App. No. CA-7492, 1988 Ohio App. LEXIS 4572 ...... 5

Mitchell v. Robbins & Myers, Inc. (1983), 6 Ohio St.3d 481, 453 N.E.2d 721 ...... 9

Sicklesmith v. Hoist (2006), 169 Ohio App. 3d 470, 863 N.E.2d 677 ...... 6

State ex rel. Boone v. Indus. Comm., Franklin App. No. 04AP-607, 2005-Ohio- 1531 ...... 9-10

State ex rel. Humility House v. tndus. Comm., Franklin App. No. 03AP-1, 2003- O h i o-5582 ...... 8

State ex rei. Miller v. Indus. Comm., Franklin App. No. 05AP-214, 2005-Ohio- 6371 ...... 7-8

State ex rel. Noll v. Indus. Comm. (1991), 57 Ohio St. 3d 203, 567 N.E. 2d 245...... 4, 9

State ex rel. P.C.C. Airfoils, Inc. v. Indus. Comm (June 25, 2002)., Franklin App. No. 01 AP-1152, 2002-Ohio-3239 ...... 9

State ex rei. Roadway Express, Inc. v. Indus. Comm. (1992), 63 Ohio St. 3d 123, 585 N.E.2d 415 ...... 9

State ex rel. Stringer v. Hamilton Plastics (June 25, 2002), Franklin App. No. 01AP-1157, 2002-Ohio-3255 ...... 6, 8

Zinn v. Leach (Nov. 29, 1990), Champaign App. Nos. 90-CA-03, and 90-CA-08, 1990 Ohio App. LEXIS 5199 ...... 5

STAUTES, REGULATIONS, & RULES

Ohio Admin. Code 4123-3-15 ...... 6

Ohio Admin. Code 4123-5-18 ...... 6

Ohio Admin. Code 4123-6-01 ...... 4-5

Ohio Rev. Code 4121.32 ...... 5-7

Ohio Rev. Code 4123.57 ...... 6-7, 9

iii Ohio Rev. Code 4731.34 ...... 5

Ohio Rev. Code 4755.40 ...... 5

MISCELLANEOUS

Hearing Officer's Manual, Memo E2 ...... 6-7

Hearing Officer's Manual, Memo M5 ...... 7

iv STATEMENT OF FACTS

On October 15, 2004, Respondent Laura Horvat ("Respondent" or "Horvat") suffered an injury to her right hand and wrist while attempting to lift a patient during the course of her employment with Relator Cambridge Home Health Care, Inc./Private

("Relator" or "Cambridge"). (Ex. A, First Report of Injury).' She filed workers' compensation claim No. 04-888455 which was recognized for (1) Right Wrist

Arthopathy (716.93), (2) Right Wrist Sprain/Strain (842.00), and (3) Right Hand

Sprain/Strain (842.10). (Ex. B).

Three and a half years later, Horvat filed a motion requesting 175 weeks of compensation for loss of use of her right hand. (Ex. D, Page 5). At the time of filing,

Horvat's treating physician was Dr. Michael Keith, a board certified hand specialist, who did not agree Horvat sustained a loss of use. (Ex. G, Page 25). In fact, in his January

21, 2008 letter to Horvat, Dr. Keith advised the injured worker she could return to work with a 5 lb. lifting restriction, pending a vocational assessment. (Id.). The requested vocational assessment found Horvat could lift a can of soup with her right hand, sign her name (although slowly), and was capable of returning to work. (Ex. G, Pages 26-29).

Additionally, in Horvat's physical therapy records from MetroHealth the occupational therapist notes the injured worker can make finger extension and flexion, can oppose thumb to index and middle fingers, and has a right hand lateral pinch strength of 7 pounds (norm is 12.0 pounds). (Ex. G, Pages 31-32). The sole basis for Horvat's request for loss was the one time exam by Dr. Todd Hochman - not relied upon by any hearing officer. (Ex. D, Pages 6-7).

1 All Exhibit references are to the Parties' Stipulated Presentation of Evidence filed August 18, 2009. I The Bureau of Workers' Compensation referred Horvat's motion for loss of use to the Industrial Commission. In an order dated May 15, 2008, District Hearing Officer

("DHO") Patsouras denied the loss of use claim stating:

District Hearing Officer finds that Ohio Revised Code 4123.57 (B) provides compensation for claimant's [sic] who sustain a loss of an enumerated body part by amputation or loss of use.

In State ex rel. Gould, Inc. vs. Indus. Comm., (1998), 40 Ohio St. 3d 323, the Court held that a loss of use...means to the same extent as if by amputation. (District Hearing Officer also cites State ex rel. Alcoa Building Products v. Indus. Comm., 102 Ohio St. 3d 341 (2004), State ex rel. Gassman v. Indus. Comm. (1975), 41 Ohio St. 2d 64, and State ex rel. Walker v. Indus. Comm. (1979), 58 Ohio St. 2d 402.)

After review of all of the evidence on file and testimony at hearing, District Hearing Officer finds that claimant has failed to establish that she has sustained a total loss of use of the right hand and therefore the request for 175 weeks of compensation pursuant to Ohio Revised Code 4123.57(B) is denied.

District Hearing Officer further finds that the 02-14-2008 report of Dr. Hochman fails to establish total loss of use of the hand. District Hearing Officer finds that the records of Dr. Keith through 01-21-2008 document some, albeit limited use of the right hand, which has been confirmed at hearing through testimony of the claimant. District Hearing Officer finds the evidence and testimony at hearing revealed claimant could perform some tasks and/or activities of daily living and could also write her name with her right hand.

Based upon the totality of the evidence noted, District Hearing Officer denies the requested award for loss of use.

(Ex. E, Pages 8-9 (emphasis added)).

A Functional Capacities Evaluation ("FCE") was performed on May 7, 2008, by

Barbara Hornbeek, a physical therapist. (Ex. G, Pages 43-58). The physical therapist rated Horvat's performance as "Medium" - meaning the results were mostly sustained, but "[p]erformance on some activities was somewhat inconsistent, self-limited or associated with increase symptom reporting in response to the exam." (Ex. G, Page

48). The physical therapist also noted validity concerns regarding "unusual/excessive

2 symptoms reports," "inconsistent strength results," "abnormal function uninjured region,"

"refusal to attempt specific tests," and "increase symptoms following exam." (Id.). On some tests, the physical therapist noted that "[t]esting on the right hand was not done."

(Ex. G, Page 43). At no point does the FCE opine as to the extent of Horvat's disability, and no physician signed or reviewed the physical therapist's FCE. (Ex. G).

The District Hearing Officer Order was appealed, and Staff Hearing Officer

("SHO") Nash found:

The injured worker is entitled to a scheduled loss of use award as she has proven that she has sustained a loss of use of the right hand. The evidence on file establishes that for all practical intents and purposes the injured worker has suffered the loss of use of her right hand. This finding is based on the results of a functional capabilities evaluation that was conducted on 5/7/08. The evaluator found that the injured worker could not perform any finger or manual dexterity activities with her right hand. The injured worker had no measurable grip strength with the right hand. She could not complete fine motor skill testing as she was unable to grasp pegs with her hand. The injured worker was unable to type or write her name with her right hand. The injured worker testified that she did sign her name using a wide pen, but that she had to employ the left hand as an assistive device for the right hand. The evaluator noted that the signature was not legible. The injured worker was unable to complete any pinching or grasping functions of any weights when tested. The Staff Hearing Officer finds this is sufficient to establish that the injured worker has lost function of the right hand for all practical purposes. Payment of the award to begin as of 5/7/2008.

All proof on file was reviewed and considered.

(Ex. F, Page 10 (emphasis added)).

3 LAW AND ARGUMENT

1. PROPOSITION OF LAW NO. 1:

A Loss of Use Award in a Workers' Compensation Claim Cannot be Based Upon a Functional Capacities Evaluation Conducted by a Non-Physician Physical Therapist.

A. The Staff Hearing Officer Solely Relied Upon the FCE Performed by a Physical Therapist.

The Industrial Commission of Ohio must specify in its orders what evidence has been relied upon and briefly explain the reasoning for its decision. State ex rel. Noll v.

Indus. Comm. (1991), 57 Ohio St. 3d 203, at syllabus, 567 N.E. 2d 245. SHO Nash specifically stated, "[t]his finding is based on the results of a functional capacities evaluation that was conducted on 517/08." (Ex. F, Page 10). SHO Nash then explained her reasoning by citing the FCE performed by a physical therapist. (Id.). The SHO makes no references to any other evidence relied upon to make her determination.

Pursuant to Noll, SHO Nash only relied upon the physical therapist's FCE.

B. A Physical Therapist is Not a Physician Under Ohio Workers' Compensation Law.

Under the Workers' Compensation Act, a "physician" is:

As defined in division (B) of section 4730.01 of the Revised Code, a doctor of medicine, doctor of osteopathic medicine or surgery, or doctor of podiatric medicine who holds a current, valid certificate of licensure to practice medicine or surgery, osteopathic medicine or surgery, or podiatry under Chapter 4731. of the Revised Code; as provided in section 4734.09 of the Revised Code, a doctor of chiropractic who holds a current, valid certificate of licensure to practice chiropractic under Chapter 4734. of the Revised Code;; as provided in section 4731.151 of the Revised Code, a doctor of mechanotherapy who holds a current, valid certificate of licensure to practice mechanotherapy under Chapter 4731. of the Revised Code and who was licensed prior to November 3, 1985; a psychologist who holds a current, valid certificate of licensure to practice psychology under Chapter 4732. of the Revised Code; or a dentist who holds a current, valid certificate of licensure to practice dentistry under Chapter 4715. of the Revised Code. A physician licensed pursuant to the equivalent law of another state shall qualify as a physician under this rule.

4 Ohio Admin. Code 4123-6-01(D). A physical therapist does not qualify under the above definitions of a "physician." See generally, Ohio Admin. Code 4123-6-01(D); Chapter

4755 of the Revised Code.

Pursuant to Ohio Revised Code 4755.40, the practice of "[p]hysical therapy

does not include the medical diagnosis of a patient's disability[.]" R.C.

4755.40(A)(emphasis added); See also Zinn v. Leach (Nov. 29, 1990), Champaign App.

Nos. 90-CA-03, and 90-CA-08, 1990 Ohio App. LEXIS 5199, *19-20 (Physical therapists are precluded from giving diagnostic opinions in testimony as well as in the form of

patient advice and communication), citing, Burress v. Park Cycle & Marine, Inc. (Nov. 7,

1988), Stark App. No. CA-7492, 1988 Ohio App. LEXIS 4572, *3 (R.C. 4755.40

precludes physical therapists from giving medical opinions by "wander[ing] outside the statute to give a medical opinion as to permanent injury[.]"). By statute, Ms. Hornbeek is not a physician and could not (and did not) opine as to the disability of Respondent

Horvat.z

C. Only Determinations as to the Extent of a Disability Made by a Licensed Physician are Considered Evidence Upon Which a Hearing Officer May Rely.

As stated above, only a licensed physician may make a medical diagnosis. See

R.C. 4731.34. R.C. 4121.32(E), governing workers' compensation, maintains that

proposition:

[w]ith respect to any determination of disability under Chapter 4123. of the Revised Code, when the physician makes a determination based upon statements or information furnished by the claimant or upon subjective evidence, he shall clearly indicate this fact in his report.

2 Ms. Hornbeek makes no determination as to the extent of "loss" nor opines as to the disability of Horvat. (Ex. G, Pages 43-48). The FCE merely explains the tests she performed. 5 R.C. 4121.32(E)(emphasis added). The above requirement of a physician determination is further supported by Ohio Admin. Code 4123-5-18(A), which states that

"no payment of compensation shall be approved by the bureau in a claim unless supported by a report of a physician duly licensed to render the treatment"

(Emphasis added). Moreover, "[m]edical evidence is required to substantiate the allowance of a disability or condition not previously considered." Ohio Admin. Code

4123-3-15(A)(2)(b). These statutes and regulations dictate that a finding of disability, and subsequent compensation, under any provision of the Workers' Compensation Act must be supported by a physician's determination.

Not only is there a general requirement under the Workers' Compensation Act that a hearing officer support his or her findings of disability on a physician's determination, but R.C. 4123.57, concerning loss of use, requires it as well. Under R.C.

4123.57, when a request is filed with the BWC or upon referral to the commission, a medical examination may be requested by the BWC or the employer.3 This examination is to be performed by a physician. See, The Hearing Officers Manual,

Memo E2, dated May 7, 2001. Memo E2, pursuant to R.C. 4123.57, requires

[t]he Hearing Officer...to note in the order that the determination is based upon the medical or clinical findings of a particular doctor or doctors. Also Hearing Officers are to note the reports of additional physicians, if appropriate.

3 It is important to note that a Functional Capacity Examination is not a medical examination, but "a series of tests used to assist the examining physician in his assessment." State ex rel. Stringer v. Hamilton Plastics (June 25, 2002), Franklin App. No. 01AP-1157, 2002-Ohio-3255, P4. "An FCE examines how well a person can do certain work-related activities such as lifting, walking, squatting, bending, and range of motion." Sicklesmith v. Hoist (2006), 169 Ohio App. 3d 470, 494, 863 N.E.2d 677. The FCE Horvat attended was a series of tests to assess her "current physical capabilities." (Ex. G, Page 43). 6 It is the duty of the Hearing Officer to evaluate the physicians' ratings of impairment and issue the determination provided by O.R.C. 4123.57.4

(Id. (emphasis added)). By statute, the Hearing Officer's Manual is controlling authority as "no employee may deviate from manual procedures without authorization of the section chief." R.C. 4121.32(A). DHO Patsouras properly applied Memo E2, stating she relied upon Dr. Keith's opinions, then briefly described his findings. (Ex. E,

Page 8). DHO Patsouras also stated she did not rely upon Dr. Hochman's opinion as it was insufficient to establish a total loss of use of the right hand. (Id.). SHO Nash, however, deviated from the requirement that her determination be based upon "medical or clinical findings of a particular doctor or doctors." In her order, the SHO only referenced and relied upon the report of a physical therapist, who is not a physician.

(Ex. F, Page 10). As a physical therapist cannot diagnose a disability, the SHO committed a clear error in adopting an FCE report without a physician's review.

No precedent exists supporting the SHO's finding based solely on a physical therapist's FCE. In State ex rel. Miller v. Indus. Comm., Franklin App. No. 05AP-214,

2005-Ohio-6371 at P36, a factually analogous case, it is held that an FCE is only reliable to the extent its views have been accepted by physician. The claimant in Miller filed for loss of use of his hand. In Miller, however, there were two physician's reports,

4 The Industrial Commission created the Hearing Officer's Manual pursuant to R.C. 4121.32, to adopt procedures and criteria for decision making. The commission was specifically required by the legislature to adopt criteria for "award[s] under division (B) of section 4127.57 of the Revised Code." R.C. 4121.32(C)(8) (emphasis added). Hence, Memo E2. See also Memo M5, dated April 17, 2002, which demonstrates that when the Industrial Commission desires to address the sufficiency of evidence from non-physician medical providers, it publishes a memo. Memo M5 addresses medical documents submitted by an Advance Practice Nurse, a Certified Nurse Practitioner, or a Clinical Nurse Specialist. The Memo makes it clear such evidence can be considered by ICO Hearing Officers for limited purposes. It is not sufficient to justify payment of compensation under R.C. 4123.56 to 4123.60. There is no like memo discussing evidence from physical therapists. 7 one of which reviewed an FCE. The physical therapist in Miller opined that the claimant's "hand is basically not useable for working activities." Id. at P36. As to the

FCE, Miller states that a physical therapist's opinion is reliable only to the extent their view is accepted by the physician. Id. See also, Stringer, supra (In the determination of permanent total disability benefits, the SHO considered two physicians' exams and an FCE by a physical therapist; however, in his order only relied upon the physician reports to make the determination); State ex rel. Humility House v. Indus.

Comm., Franklin App. No. 03AP-1, 2003-Ohio-5582 at P21-30 (the Commission relied upon a physician's assessment of a functional capacity evaluation). Unlike the facts in

Miller, SHO Nash had no physician's interpretation of Horvat's FCE available; therefore, any findings contained within the FCE cannot be deemed reliable.

The unreliability of the FCE has become even more apparent since the

Commission's Order dated June 13, 2008. Since that date, the employer has obtained a physician's review of Horvat's medical records, including the FCE. (Ex. G, Pages 49-

50). In that report, Dr. Scott Singer specifically states with a reasonable degree of medical certainty and probability that:

[T]he results of the 5/7/08 functional capacity evaluation do not appear to be a valid indicator of the claimant's current functional capabilities. The report documented a "medium" validity rating and noted that the claimant was self-limited in many of the activities. In addition, she failed to demonstrate any grip strength capability at any of the five settings on the dynamometer despite showing the ability to grasp a pen. As such, the claimant appears to have made a less than full effort during the evaluation.

(Ex. G, Page 50). In Dr. Singer's opinion, "the claimant's current level of function does not meet statutory definition for 'loss of use,"' noting that Horvat has "functional capabilities with her right hand that include the ability to mover her fingers and to 'grasp a wide pen."' (Id.).

8 U. PROPOSITION OF LAW NO. 2:

The Boiler Plate Language in a Workers' Compensation Record of Proceedings that "All Proof On File was Reviewed and Considered" Cannot be the Basis for a Scheduled Loss Award.

This Court has gone to great lengths to insure that the decisions of Industrial

Commission Hearing Officers, granting or denying benefits in workers' compensation claims, be specific and adequately explain to the parties the basis for the grant or denial of benefits. In Noll, supra, the Supreme Court, in its Syllabus, declared:

In any order of the Industrial Commission granting or denying benefits to a claimant, the commission must specifically state what evidence has been relied upon, and briefly explain the reasoning for its decision.

(emphasis added).

Noll has since been cited hundreds of times by courts throughout the State affirming this proposition. See e.g. State ex rel. P.C.C. Airfoils, Inc. v. Indus. Comm.

(June 25, 2002), Franklin App. No. 01AP-1152, 2002-Ohio-3239 at P69 ("In keeping with well-settled authority, the SHO...was only required to cite to the evidence relied upon in rendering the threshold medical determination.") In extending Noll, courts hearing appeals from the Industrial Commission have held:

Although the record may contain some evidence from which the commission could have determined that [the claimant] was entitled to R.C. 4123.57(A) compensation, our review is limited to the evidence upon which the commission specifically relied. We have consistently refused to search the record for some evidence to support the commission's decision and have returned similar cases to the commission for an amended order as required by Mitchell [v. Robbins & Myers, Inc. (1983), 6 Ohio St.3d 481, 453 N.E.2d 721].

State ex ret. Roadway Express, Inc. v. Indus. Comm. (1992), 63 Ohio St. 3d 123, 125,

585 N.E.2d 415 (emphasis added); see also State ex ret. Boone v. Indus. Comm.,

Franklin App. No. 04AP-607, 2005-Ohio-1531 at P4 (The Industrial Commission "must specifically state which evidence and only that evidence which has been relied upon to

9 reach their conclusion, and a brief explanation stating why the claimant is or is not entitled to the benefits requested" and "this court will no longer search the commission's file for 'some evidence' to support an order of the commission not otherwise specified as a basis for its decision").

A practice that some Industrial Commission hearing officers employ is to include boiler plate language in the Records of Proceedings which reads, "All proof on file was reviewed and considered."5 This exact language appears in the Record of Proceedings authored by SHO Nash. (Ex. F, Page 10). Admittedly, there is a report in the administrative file by a physician purporting to support the loss of use award. (See Ex.

D, report of Dr. Hochman).6 That report was not referenced in any regard by the SHO as a basis for her decision. By her own words, she solely relied upon the results of a

Functional Capacity Evaluation conducted by a non-physician physical therapist: "This finding is based on the results of a functional capacities evaluation that was conducted on 5/7/08." (Ex. F, Page 10).

Horvat's position is that since Dr. Hochman's report is in the file, and since the hearing officer included the boiler plate language in her Order, then there is "some evidence" the scheduled loss of use award should be granted. This position flies in the face of Noll and its progeny, and basically relegates the decision-making and fact- finding duties of hearing officers to courts on mandamus. Horvat seeks to disregard

Noll; the hearing officer need only summarily announce her decision in the Record of

Proceedings and then recite the boiler plate language "all proof on file was reviewed and considered." The mandamus court would then have to act as a hearing officer to

Nol1 requires a specific statement of evidence "relied upon," not just evidence "reviewed and considered." 6 Dr. Hochman's report, however, was specifically rejected by the District Hearing Officer. ( Ex. E). 10 "search the record" for some evidence in support of the decision. This would permit the hearing officers to abdicate their role as decision makers and let that function rest on the shoulders of any court considering the mandamus action. Moreover, the parties would be left in the dark as to the basis for the decision, knowing only that it allegedly exists somewhere in the file evidence.

In this case, DHO Patsouras followed the dictates of Noll and specifically reported which medical report she was accepting and which she was rejecting. She set forth the basis for her decision in the Record of Proceedings. (Ex. E). It can be said that

SHO Nash also complied with Noll because she specifically stated she relied upon the

FCE of a non-physician physical therapist. (Ex. F).7 However, she fails to mention anything whatsoever regarding the opinions of the doctors. The opinions are conflicting, yet neither was specifically accepted or rejected. On mandamus, this Court's review is of the SHO decision, and in this case, that review demonstrates SHO Nash specifically relied only upon the physical therapist's FCE. Had any other evidence been specifically relied upon, Noll requires that it be stated in the Record of Proceedings.

CONCLUSION

Ohio law dictates that determinations of disability are solely within the province of physicians. The workers' compensation act is no exception. Because the Staff Hearing

Officer relied solely upon a physical therapist's report, not a physician's report, the hearing officer made a clear error of law by basing her order upon unreliable evidence.

The unreliability of an FCE without a physician's review is documented by case law and requires a finding in this case that Horvat is not entitled to a loss of use award.

' This case should not be returned to the Industrial Commission pursuant to Mitchell, supra. The SHO followed Noll by specifically citing the evidence she relied upon, although inappropriately. 11 Boiler plate language in the hearing officer's order that "all proof on file was reviewed and considered" does not relieve the hearing officer of stating the evidence

"specifically" relied upon, nor should this Court fill in this gap by searching the record for that evidence. Because the onlv evidence specifically considered was the physical therapist's FCE, and since that is insufficient evidence under Ohio workers' compensation law, Horvat is not entitled to a loss of use award and mandamus relief should be granted.

Respectfully submitted,

A Michao. Reidy (0003) MILLISOR & NOBIL CO., L.P.A. 9150 South Hills Boulevard, Suite 300 Cleveland, OH 44147-3599 (440) 838-8800 Telephone (440) 838-8805 Facsimile [email protected]

Counsel for Relator, Cambridge Home Health Care, lnc./Private

12 CERTIFICATE OF SERVICE

Copies of the foregoing Relator's Brief in Support of Petition for Writ of

Mandamus were mailed by regular U.S. mail, postage pre-paid, on this 21st day of

August, 2009 to:

Charissa D. Payer, Esq. Assistant Attorney General 150 East Gay St., 22nd Floor Columbus, OH 43215

Counsel for Respondent, Industrial Commission of Ohio

and

Mark M. Sturik, Esq. Thomas C. Mays & Associates 1370 Ontario St., Suite 1520 Cleveland, OH 44113

Counsel for Respondent, Laura Horvat

/^. Micl I J. Reidy

13 APPENDIX The ln(lustrial Commission of Ohio RECORD OF PROCEEDINGS

Claim Number: 04-888455 Claims Heard: 04-888455 LT-ACC-SI-COV PCN: 2081021 Laura Horvat

LAURA HORVAT 382 STABLE DR LAGRANGE OH 44050-9654

Date of Injury: 10/15/2004 Risk Number: 20005329-0

This claim has been previously allowed for: SPRAINS AND STRAINS OF RIGHT WRIST AND HAND; AGGRAVATION OF PRE-EXISTING ARTHRITIS OF THE RIGHT WRIST.

This matter was heard on 05/08/2008 before District Hearing Officer Rhonda Patsouras pursuant to the provisions of Ohio Revised Code Section 4121.34 and 4123.511 on the following:

C-86 Motion filed by Injured Worker on 02/25/2008. Issue: 1) Scheduled Loss/Loss Of Use - RIGHT HAND

Notices were mailed to the injured worker, the employer, their respective representatives and the Administrator of the Bureau of Workers' Compensation not less than 14 days prior to this date, and the following were present for the hearing: APPEARANCE FOR THE INJURED WORKER: Sturik, Claimant APPEARANCE FOR THE EMPLOYER: Marcovy APPEARANCE FOR THE ADMINISTRATOR: N/A

It is the order of the District Hearing Officer that the C-86 Motion, filed by Injured Worker on 02/25/2008, is denied.

District Hearing Officer finds that Ohio Revised Code 4123.57 (B) provides compensation for claimant's who sustain a loss of an enumerated body part by amputation or loss of use.

ta x ., (1998), 40 Ohio St. 3d. 323, the Court held that a loss of use...means to the same extent as if by amputation . (District Hearing Officer also cites State ex rel Alcoa Building Products v Indus. Comm., 102 Ohio St. 3d. 341(2004), State ex rel Gassman v . Indus. Comm.(1975), 41 Ohio St. 2d. 64, and State ex rel Walker v . Indus. Comm.(1979), 58 Ohio St. 2d. 402.)

DHDSI Page 1 jd/jd Appx 1 The Industrial Conunission of Ohio RECORD OF PROCEEDINGS Claim Number: 04-888455

Based upon the totality of the evidence noted, District Hearing Officer denies the requested award for loss of use.

The Self-Insured employer is hereby ordered to comply with the above findings.

A POA, IS ON FILE FOR THE ABOVE LISTED INJURED WORKER.

An Appeal from this order may be filed within 14 days of the receipt of the order. The Appeal may be filed online at www.ohioic.com or the Appeal (IC-12) may be sent to the Industrial Commission of Ohio, Cleveland Regional Office, 615 Superior Avenue, N.W. - 7th Floor Cleveland OH 44113-1898.

Typed By: jd Oate Typed: 05/09/2008 Rhonda Patsouras Date Received: 03/25/2008 District Hearing Offlcer Notice of Contested Claim: 02/25/2008 Findings Mailed: 05/15/2008 Electronically signed by Rhonda Patsouras

The parties and representatives listed below have been sent this record of proceedings. If you are not an authorized representative of either the injured worker or employer, please notify the Industrial Commission.

04-888455 IO No: 14465-90 Laura Horvat Thomas C Mays 382 Stable Dr 1370 Ontario St Ste 1520 Lagrange OH 44050-9654 Cleveland OH 44113-1708

Risk No: 20005329-0 ID No: 1825-80 Cambridge Home Health Care, Inc/Pri Benefits 1 Group 4085 Embassy Pkwy 25001 Emery Rd Ste 340 Akron CH 44333-1781 Cleveland OH 44128-5627 ID No: 207B5-91 Willacy Lo Presti & Marcovy 1468 W 9th St Ste 700 Cleveland OH 44113-1220

BWC, LAW DIRECTOR

NOTE: INJURED WORKERS, EMPLOYERS, AND THEIR AUTHORIZED REPRESENTATIVES MAY REVIEW THEIR ACTIVE CLAIMS INFORMATION THROUGH THE INDUSTRIAL COMMISSION WEB SITE AT www.ohioic.com. ONCE ON THE HOME PAGE OF THE WEB SITE, PLEASE CLICK I.C.O.N. AND FOLLOW THE INSTRUCTIONS FOR OBTAINING A PASSWORD. ONCE YOU HAVE OBTAINED A PASSWORD, YOU SHOULD BE ABLE TO ACCESS YOUR ACTIVE CLAIM(S).

DHOSI Page 2 jd/jd ,.. Appx 2 .,ml aurvlcc Vwvi.lnr The lndustrial Comniission of Ohio RECORD OF PROCEEDINGS

Claim Number: 04-888455 Claims Heard: 04-888455 LT-ACC-SI-COV PCN: 2081021 Laura Horvat

LAURA HORVAT 382 STABLE DR LAGRANGE OH 44050-9654

Date of Injury: 10/15/2004 Risk Number: 20005329-0

This claim has been previously allowed for: SPRAINS AND STRAINS OF RIGHT WRIST AND HAND; AGGRAVATION OF PRE-EXISTING ARTHRITIS OF THE RIGHT WRIST, DISALLOWED FOR: LOSS OF USE OF RIGHT HAND.

This matter was heard on 06/11/2008 before Staff Hearing Officer Robin Nash pursuant to the provisions of Ohio Revised Code Section 4121.35(B) and 4123.511(D) on the following:

APPEAL of DHO order from the hearing dated 05/08/2008, filed by Injured Worker on 05/15/2008. Issue: 1) Scheduled Loss/Loss Of Use - RIGHT HAND

APPEARANCE FOR THE INJURED WORKER: Sturik, Injured Worker APPEARANCE FOR THE EMPLOYER: Marcovy APPEARANCE FOR THE ADMINISTRATOR: N/A

The order of the District Hearing Officer, from the hearing dated 05/08/2008, is vacated.

It is the order of the Staff Hearing Officer that the C-86 filed 2/25/2008, is granted.

The injured worker is entitled to a scheduled loss of use award as she has proven that she has sustained a loss of use of the right hand. The evidence on file establishes that for all practical intents and purposes the injured worker has suffered the loss of use of her right hand. This finding is based on the results of a functional capacities evaluation that was conducted on 5/7/08. The evaluator found that the injured worker could not perform any finger or manual dexterity activities with her right hand. The injured worker had no measurable grip strength with the right hand. She could not complete fine motor skill testing as she was unable to grasp pegs with her right hand. The injured worker was unable to type or to write with her right hand. The injured worker testified that she did sign her name using a wide pen, but that she had to employ the left hand as an assistive device for the right hand. The evaluator noted that the signature was not legible. The injured worker was unable to complete any pinching or grasping functions of any weights when tested. The Staff Hearing Officer finds this is sufficient to establish that the injured worker has lost function of the right hand for all practical purposes. Payment of the award is to begin as of 5/7/2008.

All proof on file was reviewed and considered. An Appeal from this order may be filed within 14 days of the receipt of the

Appx 3 SH01 Page 1 klp/klp Tlie Industrial Comntission of Ohio RECORD OF PROCEEDINGS

Claim Number: 04-888455 order. The Appeal may be filed online at www.ohioic.tom or the Appeal (IC-12) may be sent to the Industrial Commission of Ohio, Cleveland Regional Office, 615 Superior Avenue, N.W. - 7th Floor Cleveland OH 44113-1898.

Typed By: klp Oate Typed: 06/11/2008 Robin Nash Staff Hearing Officer Findings Mailed: 06/13/2008 Electronically signed by Robin Nash

04-888455 ID No: 14465-90 Laura Horvat Thomas C Mays 382 Stable Or 1370 Ontario St Ste 1520 Lagrange OH 44050-9654 Cleveland OH 44113-1708

Risk No: 20005329-0 ID No: 1825-80 Cambridge Home Health Care, Inc/Pri Benefits 1 Group 4085 Embassy Pkwy 25001 Emery Rd Ste 340 Akron OH 44333-1781 Cleveland OH 44128-5627 ID No: 20785-91 Willacy Lo Presti & Marcovy 1468 W 9th St Ste 700 Cleveland OH 44113-1220

BWC, LAW DIRECTOR

NOTE: INJURED WORKERS, EMPLOYERS, AND THEIR AUTHORIZED REPRESENTATIVES MAY REVIEW THEIR ACTIVE CLAIMS INFORMATION THROUGH THE INDUSTRIAL COMMISSION WEB SITE AT www.ohioic.com. ONCE ON THE HOME PAGE OF THE WEB SITE, PLEASE CLICK I.C.O.N. AND FOLLOW THE INSTRUCTIONS FOR OBTAINING A PASSWORO. ONCE YOU HAVE OBTAINED A PASSWORD, YOU SHOULD BE ABLE TO ACCESS YOUR ACTIVE CLAIM(S).

SHOI Page 2 klp/klp ,,,,.,.,,,,,,,, .> .,r.,•„ w,.., Appx 4 ,^,a swv,c^ ero.,acr The Industrial Coninilssion of Ohio RECORD OF PROCEEDINGS

Claim Number: 04-888455 Claims Heard: 04-888455 LT-ACC-SI-COV PCN: 2081021 Laura Horvat

LAURA HORVAT 382 STABLE DR LAGRANGE OH 44050-9654

Date of Injury: 10/15/2004 Risk Number: 20005329-0

IC-12 Notice Of Appeal filed by Employer on 06/30/2008. Issue: 1) Scheduled Loss/Loss Of Use - RIGHT HAND

Pursuant to the authority of the Industrial Commission under Ohio Revised Code 4123.511(E), it is ordered that the Appeal filed 06/30/2008 by the Employer from the order issued 06/13/2008 by the Staff Hearing Officer be refused and that copies of this order be mailed to all interested parties.

ANY PARTY MAY APPEAL AN ORDER OF THE COMMISSION, OTHER THAN A DECISION AS TO EXTENT OF DISABILITY, TO THE COURT OF COMMON PLEAS WITHIN 60 DAYS AFTER RECEIPT OF THE ORDER, SUBJECT TO THE LIMITATIONS CONTAINED IN OHIO REVISED CODE 4123.512.

Date Reviewed: 07/02/2008 Typed By: tic John L. Havener Date Typed: 07/02/2008 Staff Hearing Officer Findings Mailed: 07/05/2008 Electronically signcd by John L. Havener

04-888455 ID No: 14465-90 Laura Horvat Thomas C Mays 382 Stable Dr 1370 Ontario St Ste 1520 Lagrange OH 44050-9654 Cleveland OH 44113-1708

Risk No: 20005329-0 ID No: 1825-80 Cambridge Home Health Care, Inc/Pri Benefits I Group 4085 Embassy Pkwy 25001 Emery Rd Ste 340 Akron OH 44333-1781 Cleveland OH 44128-5627

Appx 5 SHREFUSE Page 1 tjc/tjc The Industrial Commission of Ohio RECORD OF PROCEEDINGS

Claim Number: 04-888455

ID No: 20785-91 Willacy Lo Presti & Marcovy 1468 W 9th St Ste 700 Cleveland OH 44113-1220

BWC, LAW DIRECTOR

NOTE: INJURED WORKERS, EMPLOYERS, AND THEIR AUTHORIZED REPRESENTATIVES MAY REVIEW THEIR ACTIVE CLAIMS INFORMATION THROUGH THE INDUSTRIAL COMMISSION WEB SITE AT www.ohioic.con. ONCE ON THE HOME PAGE OF THE WEB SITE, PLEASE CLICK I.C.O.N. AND FOLLOW THE INSTRUCTIONS FOR OBTAINING A PASSWORD. ONCE YOU HAVE OBTAINED A PASSWORD, YOU SHOULD BE ABLE TO ACCESS YOUR ACTIVE CLAIM(S).

SHREFUSE Page 2 tjc/tjc .:, . ,,,,...... <,.,, ., Appx 6 uul 6m.^ICu Vivrvla1o[ Page 1

LEXSTAT OHIO ADMIN CODE 4123-3-15

OHIO ADMINISTRATIVE CODE Copyrigltt ( c) 2009 Anderson Publishing Company

*** THIS DOCUMENT IS CURRENT THROUGII OHIO REGISTER FOR THE WEEK OF June 8-June 12, 2009 .**

4123 Bureau of Workers' Compensation Chapter 4123-3 Claims Procedure

OAC Ann. 4123-3-15 (2009)

4123-3-15. Claim procedures subsequent to allowance.

(A) Requests for subsequent actions when a state fund claim ltas not had activity or a request for further action within a period ot'tinte in excess of thirteen months. (1) The bureaa shall consider a request for subsequent action in a claim in the following situations: (a) Where the employee seeks to have the bureau or commission modify or alter an award of contpensation or benetits that has been previously granted; or (b) Wbere the employee secks to have the bureau or convnission grant a new award of compeusation or to settle the daitn; or (c) Where the claimant seeks to secure the allowance of a disability or condition not previously considered; or (d) Where the clainiant dies and there is potential entitlement for accrued benefits or paynrent of ntedical bills, or tbe decedent's dependent is requesting death benefits due to relatedness between the recognized injury and death. (e) Except for a medical issue relating to a prosthetic device or durable tnedical equipment as designated by the atlmiuistrator, the bureatt, in consultation with the MCO assigned to the claim, sltall issue an order on a medical treatnient reimbursentent reqttest in a claim which has not ltad activity or a request for further action within a period of titne in excess of tltirteen months as follows: (i) The MCO shall refer a ntedical treatment reimbursement request in a claim which has not had activity or a request for titrther action within a period of time in excess of thirteen months to the bureau for an order when the request is accompanied by supporting medical evidence dated not ntore than sixty days prior to the date of the request, ur when suclt evidence is subsequently provided to the MCO upon request (via "Fortn C-9A" or equivalent). The bureau's order shall address both the causal relationship between the original injury and the current incident precipitating the medical treatment reimbtusement request in a claim and the necessity and appropriateness of the requested treatment. The cmployer or the employee or the representative may appeal the bureau's order to the industrial comniission pursuant to section 4123.511 of the Revised Code. (ii) The MCO may dismiss without prejudice, and without referral to the bureau for an order, a medical treatment reintbursement request in a claim which has not had activity or a request for further action within a period of time in excess of thirteen nionths when the request is not accompanied by supporting medical evidence dated not more than sixty days prior to the date of the request and such evidence is not provided to the MCO upon request (via "Form C-9A" or equivalent). (2) Requests which require proof shall conform to the standards required by paragraph (C) of nile 4123-3-09 of the Administrative Code and mles 4123-6-20 and 4123-7-08 of the Administrative Code. (a) Medical evidence is required to substantiate a request for temporary total disability (b) Medical evidence is required to substantiate the allowance of a disability or condition not previously cun- sidered.

Appx 7 Page 2 OAC Ann. 4123-3-15

(3) In state fund cases, upon request for subsequent action under paragraph (B)(1) of this rule, the bureau shall, upon notitication, inform the parties to the claim of the pending action prior to issuing a decision. Upon request, the bureau shall provide a copy of the request and proof to the employer and the claimant, and their representatives, where applicable. Requests in self-insuring employers' cases shall be submitted to the self-insuring employer whicli shall accept or retitse the niatters sought. (4) The bureau or commission niay require the filing of additional proof or legal citations by either party or may make such investigation or inquiry as the circumstances may require. (5) A state fund employer shall, upon receipt of notification of the request, notify the bureau of any objection to the granting of the relief requested. Such notification must be filed within the time as required by the rules of the burcau and indusu•ial commission. (6) Such requests shall be determined with or without formal (public) hearing as the circunistances presented require. If the request is within the jurisdiction of the bureau and the niatter is not contested or disputed, the btffeau sltall adudicate the request in the usual manner. In all other cases, the request shall be acted upon by the industrial conimission's hearing officer or as otherwise required by the mles of the commission, depending on the subject ntatter. (7) Failttre by tlre enrployee to furnish information as specifically requested by the bureau or comnrission shall be cousidered sutlicient reason for the disniissal of the request. If the eniployer fails to furnish any information requested by the hureuu or conunission, the request may be adjudicated upon the proof filed. (B) "Application for Determination of Percentage of Permanent Partial Disability or htcrease of Pertnanent Panial Disability" pursuant to division (A) of section 4123.57 of the Revised Code in state fnnd and self-insured claims. (1) An "Application for Determination of Percentage of Permanent Partial Disability or Increase of Pertnanent Partial Disability" shall be conrpleted and signed by the applicant or applicant's attorncy and shall be filed with the bureau of workers' compensation. An application for an increase in perntanent partial disability ntust be accompanied by substantial evidence of new and changed circuntstances which ltave developed since the time of the hearing un the original or last deternrination. Unsigned applications shall be dismissed by the bureau. Except wliere an additional con- ditiun ltas been allowed in the claim and the request is for an increase in permanent partial disability based solely on that additional condition, a request for an increase in permanent partial disability filed without niedical doctunentation shall be disniissed by the bureau. Whenever the applicant or applicant's representative leaves a question or qucstions in the application form unanswered, the bureau shall contact the applicant and applicant's representative to obtain the information ttecessary to process the application. Should the applicant or applicant's representative inform the bureau that the failure to provide the information necessary to process the application is beyond the applicant's control, the bureau shall take appropriate action to obtain such information. (2) Upon the filing of the application for either of these requests, the application shall be referred to the bureau for review and processing. The bureau shall mail a copy of the application and any accompanying proof to the eniployer and the eniployer's representative. The employer shall submit any proof within its possession bearing upon the issue to the bureau witltin thirty days of the receipt of the claimant's application. (3) Each applicattt for a determination of the percentage of permanent partial disability shall be scheduled for an exanrination by a physician designated by the bureau, and the exaniining plrysician shall file a report of such examination, together witlt an evaluation of the degree of impairment as a part of the claim file. 1'lte bttreau shall send a copy ol the report of the tnedical examination to the employee, the employer, and their representatives. (4) Upon receipt of the exanrining physician's report, the bureau shall review the medical evidence in the employee's claim 61e and shall make a tentative order as the evidence at the time of the making of the order warrants. If the burcau determines that there is a conflict of evidence, the application, along with the claimant's file, shall be forwarded to the industrial conrniission to set the application for heariug before a district hearing officer. (5) Where there is no conflict of evidence, the bureau shall enter a tentative order on the request fur percentnge ol pernlanent partial disability and shall notify the eniployee, the employer, and their represeutatives, in writing, of the tcntative order and of the parties' right to request a hearing. Unless the entployee, the employer, or their representative notifies the bureau, in writing, of an objection to the tentative order within twenty days after receipt of the notice thereof, the tentative order shall go into effect and the employee shall receive the conipensation provided in the order. In no event shall there be a reconsideration of a tentative order issued under this division.

Appx 8 Page 3 OAC Ann. 4123-3-15

(6) If the eniployee, the employer, or their representatives timely notify the bureau of an objection to the tentative order, the ntatter shall be referred to a district hearing officer who shall set the application for hearing iu accordance with the rules of the industrial commission. Upon referral to a district hearing officer, the employer may obtain a medical exaniination orthe employee, pursuatrt to the rules of the industrial connnission. (7) Where the application is for an increase in the percentage of permanent partial disability, uo sooner tltan sixty days froin the date of mailing of the application to the employer and the employer's representative, the applicant shall either be examined, or the claim referred for review, by a physician designated by the bureau. Such period niay be ex- tended or the processing of the application suspended by the bureau for good cause shown. If the bureau has deterinined that the etnployer is out of business the application will not be mailed and the bureau may process the application without waiting the sixty day period. The bureau physician shall file a report of such examination or review of the record, together with an evaluation of tlre degree of inipairment, as part of the claini file. Either the employee ot' the employer may subniit additional niedical evidence following the examination by the bureau niedical section as long as copies of the evidcuce are submitted to all parties. (8) After completion of the review or examination a physician designated by the bureau, the bureau uwy issue a tentative order based upon the evidence in file. If the bureau deterniines that there is a conflict in the medical evidence, lhe bureau shall adopt the recommendation of the medical report of the bureau medical examination or niedical review. (9) The bureau shall enter a tentative order on the request for an increase of permanent partial disability and sltall uotify the employee, the eniployer, and their representatives, in writing, of the nature and amount of any tentative order issued on the application requesting an increase in the percentage of the employee's permanent disability. The eniployee, the entployer, or their representatives may object to the tentative order within twenty days after the receipt of the notice thereof. If no timely objection is made, the tentative order sltall go into effect. In no event shall there be a reconsideration of a tentative order issued under this division. If an objection is tiniely ntade, the matter shall be reterrecl to a district hearing officer who shall set the application for a hearing in accordance with the rules of the industrial commis- siou. The employer may obtain a medical examination of the employee and submit a defense medical report at any sta,,e of the proceediugs up to a hearing before a district officer. (10) W here an award under division (A) of section 4123.57 of the Revised Code has been niade prior to the deatlt of an employee, all unpaid installments accrued or to accrue are payable to the surviving spouse, or if there is no surviving spouse, to the dependent children of the employee, and if there are uo such children surviving, then to such other dependents as the conimission may determine.

History:Effective: 02/10/2009. R.C. 119.032 review dates: 11/21/2008 and 02/01/2014. proniulgated Under: 119.03. Smtutory Authority: 4121.12, 4121.121, 4121.30, 4121.31, 4123.05. Rule amplifies: 4121,121, 4123.57, 4123.65. Prior Gffective Dates: 10/9/76; 1/16/78; 8/22/86 (Emer.); 11/8/86; 7/16/90; 11/l/04.

Appx 9 Page I

LEXSTAT OAC ANN. 4123-5-18

"**'r1IIS DOCUMENT IS CURRENT THROUGH OHIO REGISTER FOR THE WEEK OF Jture 8-Jm1c 12,2009 *s*

4123 Bureau of Workers' Conipensation Chapter 4123-5 Miscellaneous Provisions

OAC Ann. 4123-5-18 (2009)

4123-5-18. Medical proof required for payment of contpensation.

(A) Except as provided in paragraph (B)(1)(b) of rule 4123-3-09 of the Adnrinistrative Code, no paynient of contpensation shall be approved by the bureau in a claim unless supported by a report of a physician duly licensed to render thc treatment. (B) Iu evaluation of sufficiency of medical proof the following criteria shall be considered: (1) The nature and type of injury or occupational disease; (2) Is the diagnosis consistent with the description of events resulting in the injury or occupational disease, as shown by proof of record; (3) Is the disability rating based solely on condition or conditions for which the claim is recognized; (4) Is the disability rating based on objective symptoms of disability as a direct result of the injury or occupational disease in the respective claim; "objective symptonts" means those signs and indications which a physician discovers 1'rom an ezamination of his patient, as distinguished from subjective symptoms which he learns f}ont what his paticnt tells hini; (5) Did the physician state reason or reasons for his opinion? (C) Whenever paynient of compensation cannot be made due to lack of inedical proof, the claintant shal l be inunc- diately advised of the necessity to submit appropriate medical proof, as specified in paragraph (A) of this rule. (D) ln cases of continued temporary disability as a result of the allowed injury or occupational disease it shall be the duty of the claimant to submit periodic medical reports of disability to assure regular payntent of cornpensatioti. 'l'he frequency of tiling such reports depends on the type and nature of the injury or occupational disease and the degree of disability. As a general rule, monthly reports of teniporary total disability are required.

History: Eff ective: 1-16-78. Promulgated Under: 119.03. Rule an plities: 4121.121, 4121.30, 4121.31. Prior Effective Dates: 1-9-67.

Appx 10 Pnge I

LEXSTAT OAC ANN. 4123-6-01

**"'fI11S DOCUMENT IS CURRENT THROUGH 01110 REGISTER FOR THE WEEK OF June 8-June 12, 2009 :*.

4123 Bureau of Workers' Compensation Chapter 4123-6 Health Partnership Program

OAC Ann. 4123-6-01 (2009)

4123-6-01. Definitions.

As used in the rules of this cliapter and Chapter 4123-7 of the Adntinistrative Code: (A) "Health partnership pt'ogram" or "HPP" nteans: 'I'lte burcau of workers' compensatiou's coniprchensive managed care program under the direction of the chief' of injury management services as provided in sections 4121.44 and 4121.441 of the Revised Code. (B) "Qualified ltealth plati" or "QHP" means: A health care plan sponsored by an entployer or a group of employers which meets the standards for qualifica- tion developed by the Itealtlt care quality advisory council and is certified as a qualified health cme plan with the bureau. ((') "Managed care organization" or "MCO" means: A vendor as defined under section 4121.44 of the Revised Code who has contracted with the bureau to pro%ide nudical management and cost containntent services as part of the HPP as provided in sections 4121.44 and 4121.441 ol' the Revised Code. As used in these rules, a managed care organization is not a health care provider. (D)"Physician" means: As defined in division (B) of section 4730.01 of the Revised Code, a doctor of medicine, doctor of osteopathic ntedicine or surgery, or doctor of podiatric medicine who holds a current, valid certificate of licensure to practice medicine or surgery, osteopathic medicine or surgery, or podiatry under Chapter 4731. of the Revised Code; as provided in section 4734.09 of the Revised Code, a doctor of chiropractic who holds a current, valid certificate of ticenstire to practice chiropractic under Chapter 4734. of the Revised Code; as provided in section 4731.151 of the Revised Cotle, a dne- tor of niechatwtherapy who ltolds a cttrrent, valid certificate of licensure to practice mechanotherapy under C'Impter 4731. of the Revised Code and who was licensed prior to Noveniber 3, 1985; a psychologist who holds a current, valid certificate of licensure to practice psychology under Chapter 4732, of the Revised Code; or a dentist wlro holds a current, valid cet'titicate of licensure to practice dentistry tinder Chapter 4715. of tlte Revised Code. A plrysician ]icensed pursuaut to thc equivalent law of auother state shall qualify as a physician under this rule. (E) "Physician of record" or "attending physician" nteans: For the purposes of Chapters 4121. and 4123. of the Revised Code, the authorized physician chosen by the employee to direct treatmettt. (F) "Practitioner" means: A pltysician, or a physical therapist, occupational tlrerapist, optometrist, or any other person currently licenscd and duly autlrorized to practice within their respective health care field. (G) "Health care provider" or "provider" means: A physieian or practitioner, or any person, firm, cotporation, limited liability cotporation, partncrship, associa- tion, agency, institution, or other legal entity licensed, certified, ot' approved by a professional standard-settiug bo(ly or

Appx 11 Page 2 OAC Ann. 4123-6-01

by a regtdatory agency under title XIII or XIX of the Social Security Act to provide particular medical services or sup- plies, including, bttt not lintited to: a hospital, qualified rehabilitation provider, pharmacist, or durable ntedical equip- ntent supplier. (H) "Credentialing" or "recredentialing" nieans: A process by which the bureau validates or reviews the application of a provider for eligibility for participation in the IIPP. (1) "Certiticatioti" or'recertificatiati' nieans: A process by which the bureau approves a provider or MCO for participation in the HPP. (J) "Provider application and agreement" meatts: A bureau forni which requests background information and documentation necessary for credentialing and which, if conipleted and signed by the provider and approved by the bureau, constitutes a written, contractual agreement between the bureau and a provider. The provider application and agreement may include a provider statement or affir- mation that the statements niade in the application and agreement are tme. (K) "Recertitication application and agreement" means: A provider application and agreement sent by the bureau to bureau certified providers as part of the providcr recredentialing and recertification process. (L) "Qureau certified provider" nteans: A credentialed provider who has contpleted and signed a provider application and agreement or recertification application and agreement with the bureau and is approved by the bureau for participation in the HPP. (IVI) "Non-bureau certified provider" means: A provider who has not conipleted and signed a provider application and agreenient or recertitication applica- tiou and agreement witlt the bureau and is not approved by the bureau for participation in the HPP, or wltose certitica- tion has lapsecl and has not been reinstated pursuant to rule 4123-6-02.4 of the Adnunistrative Code- A non-bureau cer- tifSed provider may participate in the HPP pursuant to rule 4123-6-02.7 of the Administrative Code. (N) "Employee" nieans: As used in the rules of this chapter, the term "employee" inclades the terms "injured worker" aud "clamlant" and all employees of employers covered under HPP. (0) "Emergency" means: Medical services that are required for the immediate diagnosis and treatment of a eondition that, if not immediately diagnosed and treated, could lead to serious physical or mental disability or death, or that are inzmediately necessary to alleviate severe pain. Emergency treatment includes treatnient delivered in response to symptoms that nray or ntay not represent an actual emergency, but is necessary to determine whether an emergency exists.

(P) "Medical management and cost containment services" means those services provided by an MCO pursttant to its couttact with the bureau, including return to work management services, that promote the rendering ot'high-quality, cost-effective tnedical care that focuses on minintizing the physical, entotional, and financial impact of a work-related injury or illness and promotes a safe return to work. (Q) "Medically necessary" tneans: Services which are reasonably necessary for the diagnosis or treatment of disease, illness, and injmy, aud mect accepted guidelines of niedical practice. A medically necessary service must be reasonably related to the illness or injury tor whiclt it is performed regarding type, intensity, and duration of service and setting of treatntent.

(I2) "Aulllorizalion" or "prior authorization" nieans: Notification by an authorized representative of the MCO, that a specific treatnient, service, or equipment is medically necessary for the diagnosis and/or treatment of an allowed condition, except that the bureau reserves the au-

Appx 12 Page 3 OAC Ann. 4123-6-01

thority to authorize or prior authorize the following services: caregiver services, home and van nrodifications, and return to work nianagement services pursuant to paragraph (D) of rule 4123-6-04.6 of the Administrative Code. (S) "Dispute resoltuion" means: Procedures developed by the MCO or the bureau to resolve medical disputes prior to filing an appeal undcr section 4123.511 of tlte Revised Code. ('1') "Provider outcome measurement" nieans: A niedical ntanagement analysis tool used by the bureau or MCO which at a niinimum, utilizes line itent detail from a medical bill and employee specific information including, but not limited to, demographics, diagnosis allowances rettirn-to-work and remain-at-work statistics, and other data regarding treatment, to evaluate a health care pru- vider on the basis of cost, utilization and treatment outcomes efficiency and contpliance with bureau requirements. (LI) "Utilization review" means: 'fhe assessment of an eniployee's nredical care by the MCO. This assessment typically considers ntedical necessity, the appropriateness of the place of care, level of care, and the duration, frequency or quality of services provided in relatiou to the allowed condition being treated. (V) "Treatnient guidelines" mean: Guidelines of medical practice developed through consensus of practitioner representatives, [hat assist a practitioner and a patient in making decisions about appropriate health care for specific medical conditions. (W) "Forntulary" nieans: A list of medications determined to be safe and effective by the food and drug adntinistration wlrich the bureau shall consider for reimbursement. The list shall be regularly reviewed and updated by the bureau to reflect current medical stanclards of drug thcrapy. (X) "Medication" means: The sanie as drug as defined by division (C) of section 4729.02 of the Revised Code. (Y) "Injury" means: For the purposes of the rules of this chapter and Chapter 4123-7 of the Administrative Cotle only, an injury as detined in division (C) of section 4123.01 of the Revised Code or an occupational disease as defined in division (F) ol' section 4123.01 of the Revised Code. (Z) "Return to work services" means: Services to support an injured worker in returning to employntettt where the injured worker is experiencing dif- liculty as a result of conditions related to an allowed lost time claim. (AA) "Renrain at work services" means: Services to support an injured worker or employee in continued entploytnettt where the injured worker is experiencing difficulties perforniing ajob as a result of conditions related to an allowed medical only claim. (1313) "Transitional work" means: A work-site program that provides an individualized interim step in the recovery of an injured worker withjob restrictions restdting from the allowed conditions in the claim. Developed in conjunction with the employer and the injured worker, or with others as needed, including, but not limited to the collective bargaining agent (where applicable), the pliysician of record, rehabilitation professionals, and the MCO, a transitional work program assists the injured worker in progressively perfotming the duties of a targeted job.

History:Effective: 2-14-05. R.C. 119.032 review dates: 10/26/2004 and 03/01/2009. Promulgated Under: 1] 9.03.

Appx 13 Page 4 OAC Ann. 4123-6-01

Stntutory Autltority: 4121.12, 4121.121, 4121.30, 4121.31, 4121.44, 4121.441, 4123.05, 4123.66. Rule aniplities: 4121.121, 4121.44, 4121.441, 4123.66. Prior Effective Dates: 2-16-96; 9-5-96; 1-1-99; 1-1-01; 3-29-02.

Appx 14 Page I

LEXSTAT ORC 4121.32

*** C'LIRRENT "1'HROUGH LEGISLATION PASSED BY THE 128TH OIiIO GENERAL ASSEMBLY ANI) FII.EI) WITH TIiE SECRETARY OF S"I'ATE TfIROUGH JULY 6, 2009 **• "** ANNOTATIONS CURRENT 1'HROUGH APRIL 1, 2009 "** *** OPINIONS OF ATTORNEY GENERAL CURRENT THROUGH JUNE 1, 2009 ***

TITLE 41. LABOR AND INDUSTRY CHAPTER 4121. INDUSTRIAL COMMISSION; BUREAU OF WORKERS' COMPENSATION RULES

Go to the Ohio Code Archive Directory

ORC Ann. 4121.32 (2009)

§ 4121.32. Rules supplemented with operating ntanuals; policy manual; guidelines

(A) Tlie rules covering operating procedure and criteria for decision-making that the administrator of wurkers' compcnsation and the industrial commission are required to adopt pursuant to section 4121.31 of the Revised Code shall be supplemented witlt operating manuals setting forth the procedural steps in detail for performing each of the assigned tasks of each section of the bitreau of workers' compensation and commission. The administrator and contmission jointly shall adopt such manuals. No employee ntay deviate fronz manual procedures without authorization of the sec- tioti chief. (B) Manuals shall set forth the procedure for the assignment and transfer of claims within sections and be designed to provide perforntance objectives and may require eniployees to record sufficient data to reasonably measure the efli- ciency of functions in all sections. The bureau's division of research and statistics shall perform periudic cost- eflectiveness analyses wliich shall be made available to the geoeral assenibly, the governor, and to tbe public during norntal working hours. (C)1'he bureau and coinmission joitttly shall develop, adopt, and use a policy manual setting forth the guidelines and bases for decision-making for any decision which is the responsibility ofthe bureau, district hearing officers, staff hearing officers, or the commission. Guidelines shall be set forth in the policy manual by the bureau and contniission to the extent of their respective jurisdictions for deciding at least the following specific matters: ( I ) Reasonable ambulance services; (2) Relationsliip of drugs to injury; (3) Awarcliog lump-sunr advances for creditors; (4) Awarding lump-sum advances for attorney's fees; (5) Placing a claimant into rehabilitation; (6) 1'ransferring costs of a claim from employer costs to the statutory surplus fund pnrsuant to section 4123.343 [4123.34.3] of the Revised Code; (7) Utilization of physician specialist reports; (8) Detennining the percentage of permanent partial disability, temporary partial disability, teniporary total disability, violations of specific safety requirements, an award under division (B) of section 4123.57 of the Revised C'ode, and permanent total disability.

Appx 15 Page I

LEXSTAT ORC ANN. 4123.57

C'l1RREN'I' THROUGH LEGISLATION PASSED BY TiiE 128TH OHIO GENERAL ASSEMBLY AND FILEI) WITH THE SECRETARY OF STATE THROUGH JULY 6, 2009 *"* *** ANNOTATIONS CURRENT THROUGH APRIL 1, 2009 *** *** OPINIONS OF ATTORNEY GENERAL CURRENT THROLJGH JUNE 1, 2009 ***

TITLE 41. LABOR AND INDUSTRY CHAPTER 4123. WORKERS' COMPENSATION COMPENSATION; BENEFITS

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ORC Ann. 4123.57 (2009)

§ 4123.57. Partial disability compensation

Partial clisability conrpensation shall be paid as follows.

Except as provided in this section, not earlier than twenty-six weeks after the date of termination of the latest period ol' paymenis- under section 4123.56 of the Revised Code, or nat earlier than twenty-six weeks afler the date ol'tlte injury ur contraction of an occupational disease in the absence of paynients under section 4123.56 of the Revised Code, the cnr- ployee may tile an application with the bureau of workers' contpensation for the determination of tlte percentage of the employee's permanent partial disability resulting from an injury or occupational disease.

Whencver the application is filed, the bureau sltall send a copy of the application to the employee's employer or the employer's representative and shall schedule the employee for a medical examination by the bureau medical section. "I'Ire bureau shall send a copy of the report of the medical exanunation to the eniployee, the entployer, and their representatives. Thereafter, the administrator of workers' compensation shall review the employee's claint file and niake a tentative order as the evidence before the administrator at the time of the making of the order warrants. I C the administrator determines that there is a conflict of evidence, the administrator shall send the application, along with the claintant's lile, to the district ltearing officer who shall set the application for a hearing.

The administrator shall notify the employee, the enrployer, and their representatives, in writing, of the tentative order and of the parties' right to request a hearing. Unless the employee, the employer, or their representative notif ies the ad- ministratur, in writing, of an objection to the tentative order within twenty days after receipt of the notice thereof, the tentative order shall go into effect and the employee shall receive the conrpensation provided in the order. In no event shall tltere be a reconsideration of a tentative order issued under this division.

If the employee, the employer, or their representatives timely notify tlte adniinistrator of an objection to the lentativc order, the matter sirall be referred to a district hearing officer who shall set the application for hearing with written notices to all interested persons. Upon referral to a district hearing officer, the employer rttay obtain a medical examinatiou of the employee, pursuant to mles of the industrial commission. (A) The district hearing officer, upon the application, shall determine the percentage of the employee's permanent disability, except as is subject to division (B) of this section, based upon that condition of the eniployee resulting from the injury or occupational disease and causing permanent itnpaimzent evidenced by medical or clinical tindings rea-

Appx 17 Page 2 ORC Ann. 4123.57

sonably demonstrable. The employee shall receive sixty-six and two-thirds per cent of the employce's avet'age weekly wage, but not more than a maxinxum of thirty-three and one-third per cent of the statewide average weekly wage as defined in division (C) of section 4123.62 of the Revised Code, per week regardless of the average weekly wage, for the nuniber of weeks which equals the percentage of two lrundred weeks. Except on application for reconsideration, review, or modillcation, wlticli is filed within ten days after the date of receipt of the decision of the district hearing officer, in no instance shall the former award be modified unless it is found from medical or clinical fmdings that the contlition of the claimant resulting from the injury has so progressed as to have increased the percentage of permanent partial disability. A staff hearing officer shall hear an application for reconsideration filed and the staff hearing officer's decision is l3nal. An employee may file an application for a subsequent determiuation of the percentage of the entployee's permanent disability. If such an application is filed, the bureatt shall send a copy of the application to the entployer or ilte employer's representative. No sooner than sixty days froni the date of the niailing of the application to the entployer or the entployer's representative, the adnrinistrator shall review the application. The administrator niay require a medical ex- atnination or medical review of the employee. The administrator shall issue a tentative order based upon the evidence before the administrator, provided that if the administrator requires a medical examination or ntedical review, the adntinistrator shall not issue the tentative order until the completion of the examination or review.

1'he eniployer may obtain a ntedical examination of the employee and may submit niedical evidenee at any stage of the process ttp to a luaring before the district hearing officer, pursuant to rules of the contniission. The adnriuish'ator shall notify the entployee, the entployer, and their representatives, in writing, of the nature and aniount of any tentative order is-sued on an application requesting a subsequent deterntination of the percentage of an entployee's permanent disability. An employce, employer, or dteir representatives may object to the tentative order within pventy (lays aRer tltc receipt of the notice thereof. If no timely objection is ntade, the tentative order shall go into effect. ht no event shall there be a reconsideration of a tentative order issued under this division. If an objection is timely made, the application for a subsequent determination shall be referred to a district hearing officer who shall set the application for a hearing with written notice to all iuterested persons. No application for subsequent percentage determinations on the sante claim for injury or occupational disease shall be accepted for review by the district Irearing offtcer unless supported by sub- stantiat evidence of new and changed circumstances developing since the time of the hearing on ihe original or last de- terminatioti.

Nci award shall be made under this division based upon a percentage of disability wlticlt, when taken with all other percentages of perntanent disability, exceeds oue hundred per cent. If the percentage of the permanent disability ol' the entployee equals or exceeds ninety per cent, compensation for permanettt partial disability shall be paid for two hundred weeks. Compensation payable tmder this division accrues and is payable to the employee froni the date of last payntent of contpensation, or, in cases wltere no previous conrpensation has been paid, from the date of the injury or the date uf the diagnosis of the occupational disease. When an award under this division has been tnade prior to the deatlt of an employee, all unpaid installntents accrued or to accrue under the provisions of the award are payable to the surviving spouse, or if thet'e is no surviving spouse, to the dependent children of the employee, and if titere are no children surviving, then to other dependents as the adnrinistrator determines. (B) In cases included in the following scltedule the compensation payable per week to the employee is tlte stale- wide average weekly wage as defined in division (C) of sectiott 4123.62 of the Revised Code per week and shall cou- tinuc during the periods provided in the following schedule: For the loss of a first finger, contmotfly known as a thumb, sixty weeks. For the loss of a second finger, commonly called index finger, thirty-five weeks. For the loss of a third finger, tltirty weeks. For the loss of a fourth finger, twettty weeks. For the loss of a fifth finger, commonly known as the little finger, fifteen weeks. 'fhe loss of a second, or distal, phalange of the thumb is considered equal to the loss of one half of such thunib; the loss of more than one half of such thumb is considered equal to the loss of the whole thumb. The loss of the third, or distal, phalange of any finger is considered equal to the loss of one-Ihird of the f^nger.

Appx 18 Page 3 ORC Ann 4123.57

The loss of the nvddle, or second, phalange of any finger is considered equal to the loss of two-thirds of the finger. The loss of more than the middle and distal phalanges of any finger is considered equal to the loss of the whole finger. In no case shall the amount received for niore than one finger exceed the amount provided in this schedule t'ur the loss o f a hand. For the loss of the nietacarpal bone (bones of the palm) for the corresponding thunib, or fingers, add ten weeks tu the number of weeks under this division. For ankylosis (total stiffness of) or contractures (due to scars or injuries) which makes any of the fingers, thunrbs, or parts of either useless, the same number of weeks apply to the members or parts thereof as given for the loss tltereof. If the claimant has suffered the loss of two or more fingers by amputation or ankylosis and the nature of the claintant's employntent in the course of which the claimant was working at the time of the injury or occupational disease is such that the handicap or disability resulting from the loss of fingers, or loss of use of fingers, exceeds the normal handicap or disability restdting from the loss of fingers, or loss of use of fingers, the administrator inay take that fact into consideration aud increase the award of compensation accordingly, but the award made slrall not exceed the anrount of conrpensation for loss of a hand. For the loss of a hand, one hundred seventy-five weeks. For the loss of an arm, two hundred twenty-five weeks. For the loss of a great toe, thirty weeks. For the loss of one of the toes other than the great toe, ten weeks. The loss of tnore than two-thirds of any toe is considered equal to the loss of the wltole toe. Thc loss of less than two-thirds of any toe is considered no loss, except as to the great toe; the loss of the great toe up tu the intetphalangeal joint is co-equal to the loss of one-half of the great toe; the loss of ttte great toe beyond the intetphalangeal joint is considered equal to the loss of the whole great toe. For the loss of a foot, one hundred fifty weeks. For the loss of a leg, two hundred weeks. For the loss of the sight of an eye, one hundred twenty-five weeks. For the permanent partial loss of sight of an eye, the portion of one hundred twenty-five weeks as the administrator in each case determines, based upon the percentage of vision actually lost as a result of the injury or occupational disease, but, in no case shall an award of compensation be made for less than twenty-five per cent loss of uncorrected vision. "Loss of uncorrected vision" means the percentage of vision actually lost as the result of the injary or occupational disease. For the perntanent and total loss of hearing of one ear, twenty-frve weeks; but in no case sltall an award of contpensation be ntade for less than pernranent and total loss of hearing of one ear. For the permanent and total loss of hearing, one hundred twenty-five weeks; but, except pwsuant to the nest pro- cediug paragraph, in no case shall an award of compensation be made for less than permanent and total loss of ltearinlg. In case an injury or occupational disease results in serious facial or head disfigurement which either intpairs or may in the future impair the opportunities to secure or retain employment, the adnunistrator shall make an award of compensatiou as it deenis proper and equitable, in view of the nature of the disfigurement, and not to exceed tlie sunt ot' ten ihousaud dollars. For the purpose of making the award, it is not material whether the employee is gainfully employed in any occupation or trade at the time ofthe administrators determination. W hen an award under this division has been made prior to the death of an employee all unpaid installmeuts uc- crued or to accrue under the provisions of the award shall be payable to the surviving spouse, or if there is no swviving spouse, to the dependent children of the employee and if there are no such children, then to such dependents as the adntinistrator deterniines.

Appx 19 Page 4 ORC Ann. 4123.57

W hen an entployee has sustained the loss of a meniber by severance, but no award has been niade on account thereof prior to the eniployee's death, the administrator shall make an award in accordance with this division for the loss which shall be payable to the surviving spouse, or if there is no surviving spouse, to the dependent children of the employee and if there are no such children, then to such dependents as the adntinistrator determines. (C) Conipensation for partial inrpairment under divisions (A) and (B) of this section is in addition to the contpensation paid the employee pursuant to section 4123.56 of the Revised Code. A claimant may receive conipensation ttnefer divisions (A) and (B) of this section. In all cases arising under division (B) of this section, if it is determined by any one of the following: (1) the am- putec clinic at University hospital, Ohio state university; (2) the rehabilitation services comniission; (3) an antptttee clinic or prescribing physician approved by the administrator or the administrator's designee, that an injured or disabled entployee is in need of an artificial appliance, or in need of a repair thereof, regardless of whether the appliance or its repair will be serviceable in the vocational relrabilitation of the injured entployee, and regardless of whether the employce has returned to or can ever again return to any gainfu] eniployment, the bureau shall pay the cost of the artificial appliance or its repair out of the smplus created by division (B) of section 4123.34 of the Revised Code. In those cases where a rehabilitation services commission recommendation that an injured or disabled employee is in need of an artificial appliance would conflict with their state plan, adopted pursuant to the "Rehabilitation Act of 1973," 87 Stat. 355, 29 U.S.C.A. 701, the administrator or the administrator s designee or the bureau may obtain a rec- omntendation from an amputee clinic or prescribing physician that they determine appropriate. (D) If an employee of a state fund employer makes application for a finding and the administrator finds that the employee has contracted silicosis as defined in division (X), or coal miners' pneumoconiosis as defined in division (Y), or asbestosis as defioed in division (AA) of section 4123.68 of the Revised Code, and that a change of such employee's uccupation is niedically advisable in order to decrease substantially further exposure to silica dust, asbestos, or coal dust and if the empfoyee, after the finding, has changed or shall change the employee's occupation to an occupation in whieh the exposure to silica dust, asbestos, or coal dust is substantially decreased, the adntinistrator shall allow to tlre ent- ployce an aniount equal to fifty per cent of the statewide average weekly wage per week for a period of thirty weeks, contntenciug as of the date of the discontinuance or change, and for a period of one hrurdred weeks inmiediately following the expiration of the period of thirty weeks, the employee shall receive sixty-six and two-thirds per ccnt of the loss of wages resulting directly and solely from the change of occupation but not to exceed a maxinium of an atnount equal to fifty per ceut of the statewide average weekly wage per week. No such employee is entitled to receive more than onc allowance on account of discontinuance of employment or change of occupation and benefits shall cease for any period during wltich the employee is employed in an occupation in which the exposure to silica dust, asbestos, or coal dust is not substantially less than the exposure in the occupation in which the employee was formerly employed or for any period during which the employee may be entitled to receive compensation or benefrts under section 4123.68 of the Re- vised Code on account of disability from silicosis, asbestosis, or coal miners' pnetrmoconiosis. An award for change of occupation for a coal miner who has contracted coal miners' pneumoconiosis may be granted unefer this division even though the coal miner continues entployment with the same employer, so long as the coal miner's eniployment subsequent tu the change is such that the coal nriner's exposure to coal dust is substantially decreased and a change of oceupa- tion is certified by the claimant as permanent. The administrator may accord to the employee medical and other benefits in accordance witli section 4123.66 of the Revised Code. (E) If a firefighter or police officer makes application for a finding and the administrator finds that the firefighter or police officer has contracted a cardiovascular and pulmonary disease as de6ned in division (W) of sectioo 4123.68 of the Revised Code, and that a change of the firefighter's or police officer's occupation is niedically advisable in order to decrease substantially furthcr exposure to smoke, toxic gases, chemical funres, and other toxic vapors, and if the fire- iiglrter, or police officer, after the finding, has changed or changes occupatioa to an occupation in which the exposure tu sntokc, toxic gases, chemical fumes, and other toxic vapors is substantially decreased, the administrator shall allow to the firefrghter or police officer an amount equal to fifty per cent of the statewide average weekly wage per week for a period of tltirty weeks, commencing as of the date of the discontinuance or change, and for a period of seventy-five weeks intniediately following the expiration of the period of thirty weeks the administrator shall allow the f3refighter or police officer sixty-six and two-thirds per cent of the loss of wages resulting directly and solely fronr the change ofoc- cupation but not to exceed a maximum of an amount equal to fifty per cent of the statewide average weekly wage per week. No such firefighter or police officer is entitled to receive more than one allowance on account of discontinuance of eniploytnent or change of occupation and benefits shall cease for any period during which the 5refighter or police officer is entployed in an occupation in which the exposttre to smoke, toxic gases, chemical funtes, and other toxic va-

Appx 20 Page 5 ORC Ann 4123.57

pors is not substantially less than the exposure in the occupation in which the firefighter or police officer was fornrerly employed or for any period during which the firefighter or police officer may be entitled to receive conrpensation or benefits tinder section 4123.68 of the Revised Code on account of disability from a cardiovascular and pulmonary disease. The adnunistrator may accord to the fircfighter or police officer medical and other benefits in accordance with section 4123.66 of the Revised Code. (F) An order issued under this section is appealable pursuant to section 4123.511 [4123.51.1 ] of the Revised Code but is not appealable to court under section 4123.512 [4123.51.2] of the Revised Code.

HiSTORY: GC § 1465-80; 103 v 72(85), § 33; 107 v 161; 108 v Ptl, 313; 114 v 26; 117 v 113; 119 v 565(576); 120 v 449; 121 v 660; 122 v 268(720); 123 v 250; 124 v 806; Bureau of Code Revision, 10-1-53; 126 v 1015(1028) (Eff 10-5-55); 128 v 743(757) (Eff 11-2-59); 130 v 932 (Eff 1-23-63); 130 v 926 (Eff 10-1-63); 132 v H 331 (Eff 10-31-67); 132 v H 268 (Ef712-11-67); 133 v H 680 (Eff 11-25-69); 134 v H 280 (Eff 9-20-71); 135 v H 417 (Eff 11-16-73); 136 v H 662 (Efl' 10-31-75); 136 v H 714 (Eff 1-1-76); 136 v S 545 (Eff 1-17-77); 137 v H 1282 (Eff 1-1-79); 138 v H 138 (Etl'7-27-79); 141 v S 307 (Eff 8-22-86); 143 v H 222 (Eff 11-3-89); 144 v H 297 (E1f 7-26-91); 145 v H 107 (Eff 10-20-93); 147 v 11 363 (Eff 6-30-97); 147 v S 45; 148 v H 180. Eff 8-6-99; 151 v S 7, § 1, eff. 6-30-06.

Appx 21 Page 1

LEXSTAT ORC ANN. 4755.40

*** CURRENT THROUGH LEGISLATION PASSED BY THE 128TH OHIO GENERAL ASSEMBLY AND 11I.E1) WITH THE SECRETARY OF STATE THROUGH JULY 6, 2009 *** *** ANNOTATIONS CURRENT THROUGH APRIL l, 2009 *** *** OPINIONS OF ATTORNEY GENERAL CURRENT THROUGH JUNE 1, 2009 ***

TITLE 47. OCCUPATIONS -- PROFESSIONS CHAPTER 4755. OCCUPATIONAL THERAPISTS; PHYSICAL THERAPISTS; ATHLETIC TRAINERS PHYSICAL THERAPISTS

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ORC Ann. 4755.40 (2009)

§ 4755.40. Definitions

As used in sections 4755.40 to 4755.56 and 4755.99 of the Revised Code:

(A) "Pltysical therapy" nieans the evaluation and treatment of a person by physical measures and the use ol'thera- pcutic exercises and rehabilitative procedures, with or without assistive devices, for the putpose of preventing, correcting, or alleviating any disability. If perfornied by a person who is adequately trained, physical therapy inclu(tes all of the followiog: ( I)1'he design, fabrication, revision, education, and instruction in the use of various assistive devices including braces, splints, anibulatory or loconiotion devices, wheelcbairs, prosthetics, and orthotics; (2) The adnrinistration of topical dmgs that have been prescribed by a licensed health professional autlrorized to prescribe drugs, as defined in section 4729.01 of the Revised Code; (3) The establishment and modification of physical therapy progranis, treatment planning, patient education and instruction, and consultative services; (4) Physiotlierapy. Pltysical nteasures include massage, lteat, cold, air, light, water, electricity, sound, attd the perfortnance of tests otheuromusculrr funetion as an aid to such treatment. Physical therapy does not include the medical diagnosis of a patient's disability, the use of Roentgcn rays or radium for diagnostic or therapeutic purposes, or the use of electricity for cauterization or other surgical putposes. (B) "Physical therapist" means a person wtto practices or provides patient education and instruction in physical therapy and includes a physiotherapist. (C) "Physical therapist assistant" nieans a person who assists in the provision of plrysical therapy treatnunts, including the provision of patient education and instruction, under the supervision of a physical therapist. (D) "Supervision" means the availability and responsibility of the supervisor for direction of the actions of the person supervised.

HISTORY:

Appx 22 Paflc 2 ORC Ann. 4755.40

137 v H 209 (Eff 11-21-77); 143 v H 478 (Eff 3-27-91); 147 v 11215 (Eff 6-30-97); 148 v S 238 (Eff 10-27-2000); 148 v H 585. Eff 4-10-2001; 150 v S 35, § 1, eff. 5-4-04; 151 v H 403, § 1, eff. 4-6-07.

Appx 23 May 7, 2001 Memo E2 State of Ohio Industrial Commission Policy Statements and Guidelines

Permanent Partial - Hearing Officer Discretion Hearing Officers shall be limited in their determinations of disabilities under O.R.C. 4123.57 to the percentage of permanent partial impairment based on the medical or clinical findings specifically expressed in a physician's report. Hearing Officers are to adopt one of the impairment ratings. However, when a Hearing Officer determines that the medical or clinical findings reasonably demonstrable support a percentage of permanent partial disability other than an impairment rating as found by one of the physicians, the Hearing Officer may adopt a percentage of permanent partial disability which is within the range of impairment ratings as given by the physicians even though such percentage of permanent partial disability is not the same as any of the physicians impairment ratings. The Hearing Officer is to note in the order that the determination is based upon the medical or clinical findings of a particular doctor or doctors. Also Hearing Officers are to note the reports of additional physicians, if appropriate. It is the duty of the Hearing Officer to evaluate the physicians' ratings of impairment and issue the determination as provided by O.R.C. 4123.57. The parties may agree subject to the approval of the Hearing Officer to a compromise rating of permanent partial disability, which is within the range of impairment ratings where medical evaluations are in conflict. NOTE: Industrial Commission Resolution, No. R81-7-30 (June 3, 1981)

Appx 24 April 17, 2002 Memo M5 State of Ohio Industrial Commission Policy Statements and Guidelines

Documentation Submitted by Advanced Practice Nurses, Certified Nurse Practitioners and Clinical Nurse Specialists

Medical documentation submitted by an Advanced Practice Nurse (APN), a Certified Nurse Practitioner (CNP) or a Clinical Nurse Specialist (CNS) operating within the scope of his or her standard care arrangement (SCA) is evidence to be considered by a hearing officer. An APN, CNP or CNS, depending upon his or her area of specialization, may submit documentation regarding the evaluation of the injured worker's (IW) weliness; regarding preventive or primary care services required by IW; and regarding care for the IW's complex health problems. Such medical evidence is not sufficient to justify the payment or non-payment of compensation under the provisions of Revised Code Section 4123.56 through Revised Code Section 4123.60.

Prescription drug and therapeutic device documentation submitted by an APN, CNS and CNP, who has been granted prescriptive authority under the provisions of Chapter 4723 of the Revised Code or Chapter 4723 of the Administrative Code, is evidence to be considered by a hearing officer.

Documentation may be submitted by an APN, CNP or CNS on office letterhead, appropriate BWC forms and other similar evidence. Documentation must be signed by the APN, CNP or CNS authorized to treat in the SCA.

NOTE: ORC 4723.01, ORC 4723.151, ORC 4723.41, ORC 4723.42, ORC 4723.43, ORC 4723.431, ORC 4723.48, ORC 4723.481, ORC 4723.50, ORC 4723.52, ORC 4723.54, ORC 4723.55, ORC 4723.56, ORC 4723.561, ORC 4723.57, ORC 4723.58, ORC 4723.59, OAC 4723-8-02, OAC 4723-8-04, OAC 4723-19-11, OAC 4723-19-13, OAC 4723-19-15.

Appx 25 Page I

(*'LexisNexis•

LEXSEE 1988 OHIO APP. LEXIS 4572

DELORES BURRESS, Plaintiff-Appellant v. PARK CYCLE & MARINE, INC., De- fendant-Appellee

Case No. CA-7492

Court of Appeals of Ohio, Fifth Appellate District, Stark County

1988 Ohio App. LEXIS 4572

Novenrber 7, 1988, Decided

PRIOR HISTORY: [*11 CHARACTER OF PRO- TESTIFY AS TO HIS EVALUA"fION OF HLR CON- CEEDING: Civil Appeal from the Court of Common DITION, CONTRARY TO R.C. 4755.40 ET SEQ. Pleas, Case No. 86-699 ASSIGNMENT OF ERROR NO. 11 DISPOSITION: JUDGMENT: Affirmed THE COURT ERRED IN OVERRULING PLAIN- TIFF'S MOTION FOR A NEW TRIAL AND JUDG- MENT NOTWITHSTANDING TIJE V ERDICT. COUNSEL: VICTOR HELLING, KRAMER, HEL- ASSIGNMENT OF ERROR NO. III LING & KRAMER, Cattton, Ohio, for Plaintiff- Appellant THE COURT ERRED IN REFUSING 7'O RE- CEIVE IN EVIDENCE THE AFFIDAVITS OF "ITIE ROGE2 H. WILLIAMS, TIMOTHY M. SUKEL, Cleve- JURORS FILED BY PLAINTIFF IN SUPPOR7' OF land, Ohio, for DeCendant-Appellee PLAINTIFF'S MOTION FOR NEW TRIAL. ASSIGNMENT OF [*2] ERROR NO. IV .Il1DGES: Hon. Joltn R. Milligan, P.J., Hon. John R. Hoffman, J., Hon. Ira G. Tutpin, J., concur THE COURT ERRED IN FAILING TO CHARGL THE JURY ON THE SUBJECT OF PERMANENT IN- OPINION BY: MILLIGAN JURIES AS REQUESTED BY PLAINTIFF.

OPINION ASSIGNMEN'f OF ERROR NO. V THE CHARGE OF THE COUR'f' CONFI;SED MJLI./G-.dN. J. THE JURY, WAS INCOMPLETE IN FAILING '1-0 EXPERT TESTIMONY, PHYSICAL THERAPIST CHARGE ON THE LEGAL EFFECT OF FINDING PLAINTIFF TO BE MORE THAN FIFTY PERCENT (50%) NEGLIGENT. IMPEACHING A JUROR'S VERDICT, AFFIDA- VITS - CIVIL RULE 5l(A) ASSIGNMENT OF ERROR NO. VI A jury in the Stark County Court of Common Pleas THE COURT ERRED IN CHARGING THE JIJRY returned a verdict against plaintiff-appellant in her negli- AS TO THE LAW ONLY ON STATEMENTS CON- TAINED IN THE INTERROGATORIES NO'I' IN- gence claini. She appeals the judgment on the verdict CLUDING THAT PORTION OF THE INS'I'RUC- assignittg as etTor: TIONS IN THE BODY OF THE COUR'f'S CHARGE ASSIGNMENT OF ERROR NO. I TO THE JURY, THUS CREATING CONFUSION IN THE MINDS OF THE JURORS BY IMPROPL•RLY TIIE COURT ERRED IN REFUSING TO PERMIT INSTRUCTING THE JURY ON THE LAW IN "I'WO CIIRIS MILOSCIA, A LICENSED PHYSICAL SEPARATE PORTIONS OF THE TRIAL. TIIERAI'IS"f WHO CARED FOR PLAINTIFF, TO

APPX 26 Page 2 1988 Ohio App. LEXIS 4572, *

ASSIGNMENT OF ERROR NO. VII Laboratories• (1980), 61 Ohio St.2d 197. The evidence in the record does not rebut that presumption. '1'HE COURT ERRED IN FAILING TO IN- STRUCT 1'FIE JURY AS REQUESTED BY PLAIN- Appellant's second assignnient of error is overruled. TIFF IN 1'LAINTIFF'S INSTRUCTION NOS. 2, 8, III AND 9. Appellant claims that jury confttsion as to deliberat- We overrule the assignments of error and affirm the ing instructions led to an erroneous verdict. She offers judgnrent. affidavits of the respective jurors to show their conl'u- I sion. Evidence offered in an attempt to impeaclt a juror's verdict by way of his affidavit is inadmissible. Cc•ve- Appellant clain7s the defendant's negligence in fail- lattd Electric Illuminating Co. v. Asvro/nost Laand Co. ing to maintain a rug un its premises caused the injury to (1985), 18 Ohio St.3d 268. See also Ohio Rules ol' F.vi- her right knee. To ascertain the permanency of her in- dence, 606(B). jury, lmr counsel asked Iter physical therapist: Appellants assignnient of error umnber three is over- Q. Well, let nic ask it this way. Chris. do you have ruled. an opinion as to a reasonable probability ["3] as to whether or not thcre is anything witltin the physical ther- IV apy area that can be done in order to alleviate or improve This assignment of error is built on assignmeut uf the Plaintiff's right knee conditioti! error number one. We found no error in that assignment. MR. WILLIAMS: Objection. Nothing in tlre record supports the necessity for a perntanent injury charge. Knapp v. Edwards Luborcttorie.r, TIiE COURT: Overruled supra. BY MR. HELLING: Appellant's fourth assignntent of error is overrtded. Q. Go ahcad. V A. It's -- well, I only worked with her for 4 weeks, Appellant claints that [*5] the charge of the cotirt so its really kind of Itard for me to give a judgment to was incomplete in that no charge as to the legal effect of that qttestion. I don't think its a long enough period of finding appellant more than 50% negligent was given. tinte that I can ntake a judgment along those lines. The court's instruction on contributory negligence stated: T.11, 23-24, Furthermore, if you find that the Plaintiff was cou- R.C. 4755.40 defines physical therapy as "tlre tributorily negligent and that her contributory negligeuce evaluation and treatmcnt of a person by physical meas- was a proximate cause of her injuries, she may only re- ures.... Physical therapy does not include the diagnosis cover if her contributory negligence does not exceed the of a patient's disability." Clearly, the court did not re- negligence of the Defendant, through its entployees. strain appellant's opportunity to flesh out a permissible Where both Defendant's negligeuce and Plaintill's opinion pursuant to R.C. 4755.40. Their abbreviated rela- contributory negligence are proximate causes of Plain- tionship rendered the expert helpless in giving that opin- tiffs injury and Plaintiffs contributory ncgligcnce ducs ion. Had the court allowed the therapist to wander out- not exceed Defendant's negligence, the Court will adjust side the statute to give a niedical opinion as to permanent the damages proximately resulting from Defettdant's neg- injtuy, it follows n,Jin•tiori that lie could not. ligence by the plaintiffs percentage of the conrbined neg- The first assignment of error is overruled. ligence and contributory negligence of both the Defen- dant and the Plaintiff. 11 Vol.111, 20-21. Appellant claims the evidence supports her motions for a new trial and judgment uotwithstanding the verdict. The above instruction is complete in charging thc We do not ugree. jury on the legal affect of finding the appellant ol' being, more than fifty percent (50%) negligent. [*4] The transcript provided to this court is partial. Counsel provided this partial transcript of proceedings Appellant's fifth assignment of error is overrulecl. and then asks us to rule based ott all the evidence pre- VI sented at trial. This void forces us to "presume the validity of the lower court's proceedings." Knapp v. Edwards

APPX 27 Page 3 1988 Ohio App. LEXIS 4572, *

Appellant niakes no argunrent regarding this as- not verbalirn, the record shows the court did provide this signtnent of error. As such, pursuant to App. R. 12(A), charge in its instruction: [*6] assignnient of error trumber six is ovenuled. Before you can find for the Plaintiff, the Plaiutil'I' VlI must prove by the greater weight of the evidence that her injuries were proximately caused by an unsafe condition Appellant claims the trial court erred in omitting Irer on the premises caused by the failure of the Defendant, requestect jury instructions two, eight and nine. through the Defendant's eniployees, to use ordinary care: A. or if the eondition was not so created, that the condition was known to the Defendant and that the Detendaut. Proposed Jury Instruction Two states tlrat appellant through its employees, failed to use ordinary care to ro- has uo "duty tu look for any dangers when there is no niove it or to provide notice of the condition; or it'such reason to apprehend any danger." Northtvest Airlines v. condition was not known to the Defendant, that in using Martbt Co. (1955), 57 O.O. 391. The trial court correctly ordinary care, the Defendant, through its employees, omittecf this instruction as not applying to the facts in the should have discovered the condition and used otdinary case sub jurlice. care either to correct it or to give notice of the condition. Northtvest Airlines concerns the duty imposed on a T.III, 14 buyer of aitplanes to insure airplanes manufactured by the seller are built in a safe tnanner. The case sttb judice D. questimu the duty a retail merchant owes to a business To assign error to the onussion of an instruction, the invitee. Two cotnpletely difterent factual scenarios. Two record must be coniplete pttt'sttant to Civ. R. 51(A). entirely ditYerent bttsiness relationships. Where "the matter to which [appeltant] objects and the B. grounds of [her] [*8] objection" are not stated specifically, she may not assign error. Appeltant in no way Aside from alleging that appellee's negligettce complied with tlris rule. See Civ. R. 51(A). caused appellant's injury, appellant's Proposed Jury In- su-uction Eight states tlrat appellee can be found negli- The seventh assignment of error is overruled. gent in not knowing the condition of the mat at the time For the foregoing reasons, appellant's assignments o1' appellant walked over it. Berget-at v. Employers - Com- error are overntled and the judgnient of the Court of nrcrcia! (htion C'os. 306 So.2d 367. Contmon Pleas, Stark County, Ohio, is aftirnred. Uetgeron is not the law of the state of Ohio. It is a JUDGMENT ENTRY t.ouisiana case following civil law, not the [*7] contmon law follow'ed in Ohio. The trial court property otnitted For the reasons stated in the Memorandmn-Opinion this instt'uction. on file, the judgment of the Com't of Commou 1'leas, Stark County, Ohio, is affirmed, Hon. John R. Milligan, P.J., Hon. Joltn R. 1-tot'tinan, Appellant's Proposed Jury Instruction Nine recites J., Hon. Ira G. Turpin, J., concur the Restatement of Torts Second, para. 343. Although

APPX 28 Page 1

iqp LexisNexis•

LEXSEE 2005 OHIO 1531

State of Ohio ex rel. Harry Boone, Relator, Y. Industrial Commission of Ohio and Siemetis Energy & Automation, Respondents.

No. 04AP-607

COUR7' OF APPEALS OF OHIO, TENTH APPELLATE DISTRICT, FRANKLIN COUNTY

2005 Ohio 1531; 2005 Olrio App. LEXIS 1456

March 31, 2005, Rendered

SUI3SEQCIENT HIS'fORY: Application granted by, pensation, and to enter an order granting suclr conipensa- Cause dismissed by State ex rel. Boone v. Indus. Com- tion. Pursuant to Civ.R. 53 and Loc.R. 12(M) of the nin, 2005 Oltio 6424, 2005 Ohio LEXIS 2815 (Ohio, Tenth District Court of Appeals, the matter was rclcrred Dec.6,2005) to a magistrate of this cotn't. On November 23, 2004, the magistrate rendered a decision, including tindings of fact DISPOSITION: [**1] and conciusions of law, and therein recontmendeel that this court deny the writ. (Attached as Appendix A.) Rela- tor timely filed objections [**2] to the magistrate's deci- COCINSEL: Harris & Burgin, L.P.A., and Jeffrey W. sion, which are now before the court. Harris, for relator. [*P2] Relator lodges two objections to the magistrate's decision in this case. First, he argues that the ntag- .Iim Petro, Attorney General, and Stephen D. Plyinale, istrate ignored his argument that the conrmission's order for respondent Industrial Connnission of Ohio. impermissibly failed to discuss relator's ntedical capacity for work, and failed to cite to specific medical findings. Graydon Head & Ritchey LLP, and Amy E. Lippert, for He argues that the commission intperniissibly cited only respondent Sieniens Energy & Automation. to Dr. Lutz's Physical Strengtlr Rating Fornt, which reta- tor cltaracterizes as a"boiletplate fornt," and tlrat the JUDGES: SADLER, J. BROWN, P.J., and PETREE, J. order does not clearly indicate whether the conmtission also relied on Dr. Lutz's narrative report. Thus, according OPINION BY: SADLER to relator, the order violates the principle, enunciated by the Suprenie Court of Ohio in State es rel. Noll. i^ ludu.c. OI'INION Conun. (1991), 57 Ohio St.3d 203, 567 N.E.2d 245, that, (REGULAR CALENDAR) "in any order of the Industrial Commission granting or denying benefits to a claimant, the contmission must DECISION specifically state what evidence has been relied upon, IN MANDAMUS and briefly explain the reasoning for its decision." Id. at syllabus. ON OBJECTIONS TO THE MAGISTRATE'S DE- CISION [*P3J In Noll, the conunission's order denyiug thc relator's PTD application stated that the same was " * * SADLER, J. based particularly upon [**3] the reports [sic] of Doc- [*P1] Relator, Harry Boone, filed this original ac- tors [sic] Steiman, a consideration of the claimant's age, tion requesting that this court issue a writ of mandamus education, work history and other disability factors in- ordering respondent, Industrial Conunission of Ohio cluding physical, psychological and sociological, ihat are ("thc commission") to vacate its order denying relator's contained within the Statement of Facts prepared for thc applicatiun for pernianent total disability ("PTD") com- hearing on the instant Application, the evidence in the

APPX 29 Page 2 2005 Ohio 1531, *; 2005 Oltio App. LEXIS 1456, **

tile and the evidence adduced at the hearing." According tor puts it, "actual medical findings." The Haye.s court to the court, this language provided no insight into the was concemed primarily with the convnissiotis lack of basis for the commission's decision. discussion, and apparent lack of consideration, of all ot the various negative vocational factors present in the [*P4] The court in Noll reiterated its previous hold- case when it denied PTD conipensation. 7'he court also iug that: reiterated that the comniission is the ultimate deterntincr of the perntanency and totality of disability, and the District hearing officers * * * and the connnission niust not allow the niedical or vocational Industrial Coniniission, must specifically expert to usurp the conimission's role in this regard. But state whiclt evidence and only that evi- the court did not require that the commission cite to the dence wltich ltas been relied upou to reach medical records reviewed by and relied upon the medical their conclusion, and a brief explanation expert in rendering his or her opinion. stating why the claimant is or is not entitled to the benefits requested. Moreover, [*P8] The order in the present case does [**6] not this court will no longer search the com- present the situation, as in Nall and Mitchell, where it is niission's file for 'some evidence' to sup- unclear which specific items of evidence the commissiun port an order of the conimission not oth- relied upon, or wherc the parties and the court are left to crwise specified as a basis for its decision. guess as to the rationale underlying the cotnntissiotis decision. Though perliaps the ntagistrate should havc discussed relators arguments in tlris regard, tlris does not Statc cs rel. Mitchell v. Robbins & Myers, Gtc. (1983), 6 present any analytical error on the magistrate's part. Re- Ohio St.3d 481, 483-484, 6 OBR 531, 453 N.E.2d 721. lator's first objection does not demonstrate the existenct of an abuse of discretion on the part of the commission, [*P5] In the present case, the commission's order and is not well-taken. [**4] meets the requirenients of Noll, Mitchell and their progeny. Prior to the comniission's discussion of Mr. [*P9] In his second objection, relator argues that Berntati s eniployability assessnient and the hearing offi- the narrative report and the Physical Strength Assess- cer's consideration of the non-ntedical factors, the comment Form that Dr. Lutz completed are not "some evi- missiou's order specifically states, with respect to rela- dence" supporting the commission's order because Dr. tor's residual fitnetional capacity, or medical capacity for Lutz failed to provide "an explauation of the claimant's .vurk, that the conunission finds relator capable of seden- medical capacity as deterniined by the plrysiciaii s ntcdi- tary work. The order clearly states that the basis for this cal findings." ' finding consists of Dr. Lutz's narrative report and Dr. Lutz's opinion as to residual functional capacity as ex- I Objections, at 7. pressed on the Physical Strength Rating Form. 'Phe [*P10] For support of this contention, relator ar- connuission's order enumerates the opinions from Dr. gues, as he did in Itis brief to the magistrate, [**7] that Lutz.'s narrative report upon which the conunission re- Dr. Lutz's report fails to meet the requirement that, "all lied, and specifically notes that the Physical Strength medical evidence of impairntent shall be based on objec- Rating Form contains the conunissions definition of tive findings reasotiably denionstrable and medical ic- "sedentary work." Furthermore, the order itself contains ports that are submitted shall be in conforniity with the a recitation of the full definition of"sedentary work." industrial comntission medical examination nianual." [*P6] Relator argues that the commission is re- Ohio Adcn.Code 4121-3-34(D)(3)(d). We disagree. quircd to go beyond the findings and opinions in the [*P11] As required by the niedical exantination medical expert's reports and must cite to specific items nianual, ' Dr. Lutz sets forth relator's cltief coniplaints, from relator's medical records. Though it is somewhat history of present conditions, activities of daily living, unclear, relator appears to be arguing that [**5] the or- and detailed past medical history. Dr. Lutz describes in because it does not ntention specific der violates No11 detail his physical examination of relator, including ob- diagnoses mrd objective and subjective findings related jective findings derived front tnuscle and range-of- to specific ul'fected body parts. motion testing. Finally, he states Itis conclusions, inclucl- [*P7] For support of this contention, relator cites to ing his medical opinion that relator has reached maxi- page 576 of the opinion in the case of Stnte er rel. Hnyes muni niedical improvement, has sustained a 13 percent v. buhts. Conuu. (1997), 78 Ohio St.3d 572, 1997 Ohio whole person impairment, and is capable of perfornting 180, 679 N.E.2d 295. On no page of the opinion in the work in the sedentary category. There is nothing to sug- Ihiyes case does the Suprenie Court of Ohio hold, or gest that Dr. Lutz's findings attd conclusions were not even intimate, that the commission must cite to, as rela- objective. As this court held in Strrte cx rel. Poneris r.

APPX 30 Page 3 2005 Ohio 1531, *; 2005 Ohio App. LEXIS 1456, **

lndns. Comnr., 10t1t Dist. No. 02AP-712, 2003 Ohio [*P15] After an examination of the magistrate's de- 2184, a plrysiciatis report is not removed from eviden- cision, an independent review of the record pursuant to tiary [**81 consideration because the physician states Civ.R. 53, and due consideration of relator's objections, "lindings and conclusions without setting forth an expo- we overrule the objections, and find that tire magistrate sition of how and why those findings led to those conclu- made no etror of fact or law. Accordingly, for all of the sions." Id. at P47. foregoing reasons, we adopt the niagistrate's decision as our own, supplement the same with our own conclusions 2 See Stip.Rec., at 42-44. regarding the Noll line of autltorities, and we deny relator's request for a writ of mandamus. [*l'12] Relator also argues that Dr. Lutz's narrative report is not "some evidence" supporting the conunis- ObjecTions• overnded; writ ofmandnonts s-ion's order because the report does not explain whether dertied. Dr. Ltrtz believes relator has any physical limitations at all or, if so, wltat exactly those limitations are. Relator argues that Dr. Lutz's opinions, as expressed in his narra- BROWN, P.J., and PETREE, J. tive report and in the Plrysical Strengtlt Assessntent Form, are atnbiguaus because neither docunrent makes APPENDIX [**I]] A clcar "whcther Dr. Lutz believes that Relator is capable MAGISTRATE'S DECISION of all sedentaryjobs, sonie sedentaryjobs, or a select few setlentaryjobs * * *." ' Again, we disagree. Rendered on Novenrber 23, 2004 IN MANDAMUS 3 Objections, at 9. [*P16] In this original action, relator, Harry Boone, [*[43] [**91 On the Physical Strength Rating requests a writ of mandamus ordering respondent Indus- Form, which the commission required him to fill out in trial Commission of Ohio ( "commission") to vacate its connection with his examination of relator, ' Dr. Lutz order denying him permanent total disability ("P7'D") placed an "X" next to the statentent, printed in bold let- compensation, and to enter an order granting said com- ters, ""I'Iris injured worker is capable of physical work pensation. activity as indicated below." He also placed an "X" ini- mediately below the foregoing statement, next to the Findings of Fact: title, "Sedentary Work." Printed inunediately below that [*P17] 1. Relator has three industrial clainis. Claini title is the definition of "sedentary work." It is clear that number 01-828230 is allowed for "L4-5 disc herniation." Dr. Lutz opines that relator is physically capable of en- Claim number 97-614543 is allowed for "Unibilical her- gaging in any activity that falls within the paranieters of nia." Claim number 98-592597 is allowed for "Sprain the detinition of "sedentary work" found on the form. This clearly indicates that Dr. Lutz believes relator capa- lumbar region." ble of pertbrming all jobs that comport with the features [*P18] 2. On Noventber 8, 2002, relator filecl an of the detinition provided. If he did not, he would not application for PTD compensation. have so indicated on the fornr. Any further assessntent of the appropriateness of any particular jobs in the seden- [*P19] 3. On January 28, 2003, relator was exam- by James T. Lutz, tary category is appropriate for a vocational expert re- ined, at the conimission's request, port, and auy tdtintate determination of such is to be M.D. Dr. Lutz issued a three-page typewritten nart'ative Dr. Lutz took an exten- macie by Ihe commission, not a physician. report. During the examination, sive history from relator. He also detailed the ntedical 4 See January 13, 2003 Medical Examination history from the medical records. The findings from the physical examination are also described in great detail. Referral. Stip.Rec., at 41. Dr. Lutz's narrative report concludes: [**10] [*P14] Relator argues that when the physician's classification of an injured worker's residual func- In my medical opinion, this claimant tional capacity is expressed prirnarily tbrough the use of has [**12] reached niaximum medical "X" ntarks on a preprinted form, the order denying PTD improvement with regard to each speci- contpensation is not supported by "some evidence." This 5ed allowed condition of the three inju- court has previously rejected the identical argument on ries of record discussed above. In my two occasions. See Strrte ex rel. Dreyer v. Anderson opinion, no fundamental, functional or TwP., 10th Dist. No. 04AP-461, 2005 Ohio 366, at P4-5. physiologic change can be expected de- See, also, St

APPX 31 Page 4 2005 Ohio 1531, *; 2005 Ohio App. LEXIS 1456, **

Reference is made to the Fourth Edi- that the injtrred worker Iras reached tion of the AMA Guides Revised in arriv- maximum medical improvetnent considering at the following intpairment assess- ing the allowed conditions and has a re- ment. For injttries to the lumbosacral in- sulting 13% whole person pernianent im- cluding L4-5 disc herniation and sprain pairment. Dr. Lutz [**14] contpleted a lutubar region, with evidence of radiculo- Physical Strength Rating Form which lie pathy: Utilizing table 72 on page 110 the attached to his medical report wherein he claintant warmnts a DRE category III, indicated that the injured worker is capa- whicli equals a 10% whole person im- ble of performing sedentary employtnent. pairntent. For umbilical hernia: Utilizing Sedentary work is defined on that fornt as table 7 on page 247 the claimant warrants meaning the ability to exert up to 10 a class I impairment, which in this case pounds of force occasionally and a negli- equals a 3% whole person impairment. gible amount of force frequently. Seden- Combining 10+3 the claimant warrants a tary employment involves sitting most of 131A whole person impairment. the time, but niay involve walking or standing for brief periods of tinte. Jobs are Please see the enclosed physical considered sedentary if walking and strengtlt rating. standing are required only occasiottally and all other sedentary criteria are nret. The Staff Hearing Officer finds that [*P20] 4. On January 28, 2003, Dr. Lutz completed the injured worker is capable of perfornr- a pltysical strength rating form which the commission ing sedentary ernployment based on the requires its medical examiners to complete. The top of opinion of Dr. Lutz and in accordance the fornt contains the following preprinted paragraph: with its definition on Physical Strength Rating Form completed by Dr. Lutz. My opinion of this injured worker's physical strength is indicated below [** 13] and is based solely on the allowed condition(s) that falls within my specialty. [*P23] 6. On June 14, 2004, relator, Harry f3oone, The niedical evidence supporting this filed this mandamus action. opinion is presented in the narrative por- Conclusions of Law: tion of my report. The injured worker's age, education, and work history are not [*P24] The issue is wltether Dr. Lutz's reports con- considered in this estimate. stitute some evidence upon which the comntission cau rely to support its finding that relator is medically able to perform sedentary work. Finding that Dr. Ltttz's rcports (Emphasis omitted.) do constitute some evidence upon whiclr the comntission [**15] can rely, it is the magistrate's decision that this [*P21] The forni asks the examining physician to court deny relator's request for a writ of ntandantus, as mark whetlrer "tltis injured worker is capable of physical more fully explained below. work activity as iudicated below" or "this injured worker is uot capable of physical work activity." (Emphasis [*P25] Relator points out that Dr. Ltttis narrativc omitted.) Dr. Lutz ntarked the former and then marked report itself does ttot address relator's capacity for physi- "sedcutary work." Tlte conmtission's definition of "sed- cal work. From this observation, relator claims that the cntary work" is presented beneath. Dr. Lutz signed and commission excAesively relied upon the physical strength dated the fornt. rating form. He then asserts that the commission premised its medical determination exclusively on a check- [*P22] 5. Following a December 29, 2003 hearing, mark placed by Dr. Lutz near a preprinted detinition ol' a staf'f' hearing officer ("SHO") isstted an order denying sedentary work. rclaturs PTD application. The SHO's order states, in part: [*P26] According to relator, the contntission crro- neously assumed, based upon the clteckntark, that relator The injured worker was examined by is capable of a full range of sedentary work uuder the Dr. Lutz at the request of the Industrial definition of sedentary work. According to relator, Dr. Coniniission with respect to the allowed Lutz's checkmark must be viewed as an "anibiguous conditions in ttte claim. Dr. Lutz opined opinion" because Dr. Lutz failed to state wltetlter Itis

APPX 32 Page 5 2005 Ohio 1531, *; 2005 Olrio App. LEXIS 1456, **

checkntark means that relator can perform a full range of [*P29] There is nothing ambiguous about Dr. sedentary work or some lesser range of sedentary work. Lutz's opinion which must be read that relator is capablc 7'he magistrate disagrees with relator's arguments. of a full range of sedentary work within the definition. The narrative report places no restrictions on the type of [*P27] To begin, the convnission did not exclu- sedentary work that relator can perform. sively rely upon the physical strength rating form completed by Dr. Lutz. The SHO's order of December 29, [*P30] It is [**17] the commission that weighs [he 2003, clearly [** l6] indicates that the comniission relied medical evidence. While relator attentpts to cast doubt upon the narrative report and the physical strettgth rating about the meaning of Dr. Lutz's conipletion of the physi- f'ornr. Accordingly, it is inaccurate to characterize the cal strength rating form, tlte commission was not re- conunissiotis decision as premised solely upon a physi- quired to accept relator's view of the evidence. Dr. Luti s ciaiis checkmark on a so-called boiletplate fornr. Dr. reports, on their face, are not equivocal or internally in- Luti s narrative report must be read together with the consistent. See Srnte ex i-el. Lopez v. Gudds. Conuu. physical strength rating form. In fact, Dr. Lutz specifi- (1994), 69 Ohio St.3d 445, 1994 Ohio 458, 033 N.F:.2d cally incotporates the physical strength rating form into 528. Accordingly, the commission was fiee to accept or his narrative report wlren he writes: "please see the en- reject Dr. Lutz's opinion that relator is capable of seden- closed physical strength rating." tary work. [*P28] Equivocal medical opinions are not evi- [*P31] Accordingly, for all the above reasoos, it is dencc. State c.c rel. Eberfmrdt v. Flxible Corp. (1994), 70 the ntagistrate's decision that this court deny relator's Ohio St.3d 649, 657, 640 N.E.2d 815, Equivocation oc- request for a writ of mandamus. curs whcn a doctor repudiates an earlier opinion, renders contradictory or uncertain opinions, or fails to clarify an /s/ Kennetlt W. Macke ambiguous statement. Ambiguous statements, however, KENNETH W. MACKE are considered equivocal only while they are unclarified, Id. MAGISTRATE

APPX 33 to LexisNexis•

LEXSEE 2003 OHIO 5582

State ex rel. Humility House, Relator, v. Industrial Contnrission of Ohio and Goldfe Hollattd, Respondents.

No. 03AP-1

COURT OF APPEALS OF OHIO, TENTH APPELLATE DISTRICT, FRANKLIN COUNTY

2003 Ohio 5582; 2003 Ohio App. LEXIS 4971

October 21, 2003, Rendered

SUBSEQUEN'I' HIS7'ORY: Application granted by, ability ("P7'D") conrpeusation to respondent, Ciol(lic Ifol- Cause dismissed by State ex rel. Humility House v. In- land ("Holland"). dus. Contut., 2004 Ohio 2880, 2004 Ohio LEXIS 1315 [*P2] Pursuant to Civ.R. 53(C), and Loc,R. 12(M) (Ohiu, June 7, 2004) of the Tenth District Court of Appeals, this matter Mas referred to a magistrate who issued a decision including PRIOR HISTOI2Y: [**[] ON OBJECTIONS TO findings of fact and conclusions of law. (Attached as TIIE MAGISTRATE'S DECISION IN MANDAMUS. Appendix A.) In her decision, the magistrate fuund tbat there was "sonre evidence" to support the contntissioti s DISPOSITION: Relator's objections were overrttled determination that Holland was incapable of pcrfornting :utd writ of mandanius was denied. sttstaitted, remunerative [**21 employment. She determined that thougli the evidence was susceptible to interpretation with respect to whetlicr or not llulland was COUNSEL: Hanna, Catnpbell & Powell, LLP, and Lori capable of sectentary or light work, (he conmtission's A. Prickc, for relator. interpretation was within its discretion.

Jim Petru, Attorney Getteral, and Janine Hancock Jones, [*1`3] The tnagistrate also tbund that becatise thc for respondent Industrial Commission of Oltio. evidence established that medical factors alone renLler Holland incapable af sustained, remuterative employ- Law Ol'fices of Dennis E. Ujczo, and Dennis E. Ujczo, nient, the conuuission was not required to evaluate non- fot' respondent Goldie Holland. medical factors pursuant to S'tate ex re1. Slephenson t^ Industrial Cotn. ojOhra (1987), 31 Oliio St. 3d 167, 31 JUDGES: SADLER, J. LAZARUS and WATSON, JJ., Ohio B. 369, 509 N.E.2d 946. Therefore, the ntagistrate concur. P.A. DAVIDSON, MAGISTRATE. reconnnended that the requested writ of mandamus bc denied. OI'INION BY: SADLER [*P4] Relator filed objections to the magistrate's decision. Tlrerein, relator argues that the magistrate erret] OPINION in finding that the January 21, 2002 report of Holland's (REGULAR CALENDAR) treating physician, Dr. Willianis, constituted "sonic evidence" of Holland's physical inability to engage in sus- DECISION tained, remunerative employntent. Relator argues Ihat, SAL) LER, J. because Dr. Williants had opined just three montlts car- lier, in a report dated Septenrber 14, 2001, that Holland ["I'I] Relator, Humility House, commenced this could return to work within the restrictions outlined by original action requesting a writ of mandantus ordering the occupational therapist, the January 2002 [**3] report responctent, Industrial Commission of Ohio ( "commis- should nut have been relied upon and does not constilu0.• sioti'). ter vacate its order awardiug permmnent total dis-

APPX 34 Pat,c^ 2 2003 Ohio 5582, *; 2003 Ohio App. LEXIS 4971, **

"some evidence" supporting the conrmission's order. We disability ("PTD") to respondent Goldic Holland and to ctisagree. deny the requested compensation or, in the alternative, to give further consideration to the PTD application under [*115] The January 2002 report contains both objec- State ex rel. Stephenson v. Gufash'ial Cont. oJ' 06in tive and subjective physical findings and an opinion that, (1987), 31 Ohio St. 3d 167, 31 Oltio B. 369, 509 N.E.2d ntedically, Holland is pertnanently and totally disabled. 946. 1'herefore, it constitutes "some evidence" supporting the commission's order. Chat thc sanie physician opined dif- Findings of Fact: fercntly several mouths earlier goes only to the weight of the evieience. 't'he conrniission ascribed sufficient weight [*P10] I. In March 2001, Goldie Hollancf ("claint- to the Janum-y 2002 report to rely ott it in ordering PTD ant") was lifting a resident of I-htmility liouse front tlte compensation, and this was within its discretion. This floor when she sustained an injtu'y to lter back. Her objection is overruled. workers' conipensation claini was allowed for a compression fracture of the lumbar spine at L3. Clainient was 72 [*P6] IZelator also argues that the magistrate erred years old on the date of injury, when she concluded that the comntlssion was not re- yuired to discuss non-nredical factors pursuant to .Ste- [*P11] 2. In Apt'il 2001, K. Brian Williants, D.O., plrrnsuu, supra, and that the commission was correct in an orthopedic surgeon, reported as follows: relying uu the case of Stttte ex rrd. Galiort Mfg. Div. [*P12] "There is apparently a question as to the re- Ibr.v.,vr lndustries, lnc. v. Hqrgond (1991), 60 Ohio lationsltip of Mrs. Holland's fracturc aud Iter tvork rclated St.3d 38, 573 N.L:.2d 60 in failing to do so. An evalua- activities. There is no history to suggest any other rela- tion of the non-nudical,tvocational factors is not neces- tion-slrip and the activity of record is certainly consistent sary wlten the claimant is ntedically unable to perf'orm and is felt to be the cause of her compression [**6] frac- any sustained, remunerative [**4] eniployntcnt, even it' ture of L3 vertebral body." tltis inability is occasioned by only one allowed condition. State c.v rel. Speelrnmt v. lndu.s. Cam»t. (1992), 73 [*PI3] 3. On September 6, 2001, claimant was Ohio App.3d 757, 598 N.E.2d 192. Accordingly, this evaluated in regard to her funetional capacity at Key- objecfion is overnded. stone Rehabilitation Systems, at wlrich time she felt that she could perform many of the tasks that she usecl to [*P7] Finally, relator atgues that the magistrate coniplete prior to her injury. The occupational therapist errcd in not addressing relator's contention that Holland's opined that claimant retained tlre capacity to carry ten aelvanced age was ttte sole catise of her inability to work. pounds occasionally, sit frequently (although she had to Finding notlring in tlte record to dentonstrate that Hol- change her position as pain in her low back began to land's age was the sole cause or primary obstacle serving increase), drive a car for transportation to appointments, as a significant inipedinrent to reemployment, we find no etc., perform fine motor skills and fingering frequcutly, error in the magistrate's failure to specifically address stoop/bend occasionally, and ktteel one to two tinies per this argumeut. day. Claimant was able to perform a variety of limited [*P8] Following an independent review of this lifting and reaching activities. The tlrerapist made the matter, we tind that the magistrate has properly deter- following recommendations: mined the pcrtinent facts and applied the appropriate law. [*P14] "Based upon the results of this evaluation. llterefore, we overrule relator's objections and adopt the Mrs. Ilolland should work at a positiott in the Sedcutary utagistrate's decision as our own, including the findings level of Physical Demands, (1 to 10 # Occasionally, Neg- of fact and conclusions of law contained therein. In ac- ligible weigltt on a Frequent or Constant basis.) She did cordance witlr the nragistrate's decision, we detty the have greater strength in the lift that used her leg streugth, rcqucsted writ of' mandamus. being in the Light level when lifling 15 inches above Objections overruled; floor level (11 to 20 # Occasionally, but no Frequent lil'ts from this level.) [**7] She should be given tire opportu- writ of mandamus denied. nity to change her postures every 30 minutes, as she can LAZARUS and WATSON, JJ., concur. be on her feet or sit 30 minute intervals, and then pain becomes intense if she does not change lter posture. Shc IN MANDAMUS is limited to 10 minute intervals of Standing stationary. [*P9] In this original action, relator, [**5] HM She would benefit from keeping tasks witltin Near Iteaeh Healtli Services, known as Hun»lity House, asks this (within 16" of her body) to mininrize discomfort from cnurt to issue a writ of ntandanius compelling respondent reaching and allow her to use het' hands on a Frequent Inclustrial Coninrission of Ohio ( "comnzission") to vacate basis. She could use Bend/Stoop or Rarely a 1/2 Kneel to its orcfer awarding compensation for perntanent total perfomr low or floor level tasks."

APPX 35 Page 3 2003 Ohio 5582, *; 2003 Oltio App. LEXIS 4971, **

[*P15] The occupational therapist further opined [*P23] "Based upon this evaluation and all the in- that, if clainiant could be taken back at a modified duty, formation previously outlined, it is my feeling tltat Mrs. litiing more than ten pounds occasionally and given the Holland is permauently and totally disabled due to al- opportunity to sit occasionally, while also following all lowed conditions whiclr are felt to be directly relatcd to the other recommendations, claitnant "may be able to the injury of record." participate in a Gradual Return to Work program, begin- [*P24] 6. In February 2002, claintant filed a P'IT) nin, at 4 hours per day and slowly increasing to a full 8 application stating among other things that slte was born Iwuts per day as her tolerance improves." in May 1928 and finished eight years of scitool in West [*P16] 4. On September 14, 2001, clainiant's or- Virginia, [**10] leaving school in about 1945 to work Ihopedist, Dr. Williams, released her to return to work to help support her family. She was certified as a nurse's within the restrictions outlined in the occupational aide in 1990. cvaluation. [*P25] 7. Additional medical and vocational re- [*P17] 5. In Deceniber 2001, claintant visited Dr. ports were submitted. Williams, reporting increased [**8] intensity ofpain. On [*P26] S. In Septentber 2002, a hearing was held January 21, 2002, Dr. Williatns reported, in part: before a staff hearing ofticer ( "SHO"), who found thc [*1118] " * * Mrs. fiolland's itrjtuy of 3/23/01 is Jarntary 2001 report of Dr. Williants to be persuasive. recalled lil'ting a resident froni the floor at Huniility The SHO found that claimant was niedically unable to House. * * * X-rays of 3/26/01, Medical hnagining Net- perform any sustained reniunerative employment, based work, sltowed a compression fracture of the L3 vertebral solely on the industrial injury and allowed condition in body. 13one scan dated 4/9/01 showed increased activity the claim. Accordingly, the SHO did not proceed ta an of L3 vertebra, corresponding to compression deformity analysis ofnonmedical factors: seen on plain tiltns. [*P27] "It is the finding of the Staff Hearing Of7i- [*P19] "The patient was subsequently referred to cer that this claim has been allowed f-or: COMPRES- ABI Orthotics for placement of a back brace. A Freentan SION FRACTURE L3. corset was fit 4/18/01. Patient was instructed to contimte [*P28] "After fidl consideration of tht: isstie it is to wear lhis and was folIow up on a serial basis with fol- the order of the Staff Hearing Officer that the Applica- low up X-rays of the lunrbar spine to assess the status of tion ftled 01/31/2002, for Permaneot and -]btal Disabilitv the vertebral 1'racture. The brace alleviated some of the Conrpensation, is GRANTED TO THE FOLL,OWINCi patient's discomfort, however, not all of it, which was EXTENT. even associated witlt simple activities of daily living. [*P29] "Permanent and total disability compensa- [*P20] "X-rays taken 5/21/01 showed iniproved tion is hereby awarded from 1/21/2002 ***. density tlirough the L3 vertebral body with appearance of a stable healing fracture. Brace was continued at that [*P30] "This Staff Hearing Officer tinds that it is point as well. 1'herapy was initiated at that time at Rehab not necessary to consider tlte claimant's disability facturs Network with slow progression related to the injury it- since the claimant has reached ntaxinium medical [** I I] self, patient's age and also symptoms. Therapy was [**9] improventent and is medically unable to perfonn any progressed in light of the apparently healed fracture, sustained remunerative employment based upon the though ihe paticnt continued to complain of low back 1/21/2002 opinion by Dr. Williants, D.O., an orthopedic pain and restt'ictions of activities including difficulty surgeon. even sitting because of associated back pain. [*P3 I] "This Hearing Officer relies ttpon the casc [*P21] "Functional capacity evaluation was rec- of State ex rel. Galion Mfg. Div., Dresser Industries, Inc. onmiended and obtained, report dated 9/6/01. Significant v. Haygood (1991), 60 Ohio St.3d 38, 573 N.E.2d 60, impairnients were listed here as well as rather prohibited wherein the court stated as follows: outline of'recomtnendations for liniitations. [*P32] " [']A claimant who has multiple allowed [*P22] "7'he latest follow up date was 12/12/01. conditions is not required to show that each conditiou Tlre paticnt was hurting a lot in her low back subjectively standing alone, is work-prohibitive... While permanent at that time witlr actually an increased intensity. Clini- total disability benefits may never be denied solely on calty observec] was a slow, careful gait, pain on palpation the basis of medical evidence without consideration uf' of thc lumbosaaal and sacroiliac areas, increased luntbar Stephenson factors contained in the record, there arc tone with sonte tenderness, and signiticaat limitation of some situations where an award of such benef^ts ntay back mobility. properly be based on medical factors alone. It wuuld serve no practical purpose for the comtnission to cun-

APPX 36 Page 4 2003 Ohio 5582, *; 2003 Ohio App. LEXIS 4971, **

sider non-ntedical tactors in extrenre situations where rel. Galion Mfg. Div. Dre.t'ser Inthesn-ies. 6rc. v. Hnt'guod niedical factors alone preclude sustained remunerative ( 1991), 60 Ohio St-3d 38, 573 N.E.2d 60; Strrte e.r rel. employment, since non-niedical factors will not render Speelman v. Intlus. Contm. (1992), 73 Ohio App.3d 757, the claintant any nwre or less...able to work.['] 598 N.E.2d 192.[**14] [*P33] "The payntent of permanent and total dis- [*P40] Here, the commission found that claimant ability benefits is to commence on 1/21/2002, based on was medically unable to perfomi any sustained remu- the claintant's [**12] request that the permanent and nerative employment due to the industrial injury, and the total disability benefits coninience on said date, and the issue before this court is a narrow one--whether that tind- upinion oC Dr. Williams, cited above. ing was supported by "sonie evidence" in the record. 'rhr magistrate concludes that it was. The report on wltich the [*P34] "It is tiirtlter ordered that the above award contniission relied, the January 2001 report of Dr. Wil- be alloceted as follows: 100% of the award is to be paid liams, constituted "some evidence" to suppurt the com- under ('laim Number 01-832131. mission's decision. Accordingly, a writ of mandanms is [*1'35] "The allocation of this award is predicated not warranted. upon tlte said opinion of Dr. Willianu who attributes all of claimant's inability to work solely to the injury and [*P4l] The employer argues the decision in Calion allowed condition in this clainr. Said opinion is found Mfk. cited by the commission was inapplicable. The persttasive. niagistrate disagrees, concluding that the principle for which the decision was cited ltas application beyond [*P36] "All relevant evidence has been reviewed, those situations in wlriclr the injured worker ltas ntultiple ( and considered, in rendering this decision." Emphasis allowed conditions. Where a claimant is medically un- sic.) able to perform sustained reniunerative employment, an [*P37] 9. The employers request for reconsidera- evaluation of tite vocational ability is pointless, regard- tlon was denled. less of whether there is one allowed condition or ten. A consideration of the clainiant's vocational factocs is C'onclusious of Law: premised on the existence of a residual medi- [*P38] The relevant inquiry in a PTD determina- cal/funetional capacity for sustained remunerative em- timi by the conmiission is whether the injured worker is ployment. See, generally, Stephenson; [**15] Speel- capable of performing any sustained remunerative ent- tnan, supra; see, also, Strrte es rel. Corona v. Im1u.e. ployment. State ev rel. Donjanc'ic v. /rtdus. Camn. Comrn. (1998), 81 Ohio St.3d 587, 589, 1998 Oliio 605, (1994), 69 Ohio St.3d 693, 695, 1994 Ohio 95, 635 692 N.E.2d 1017 (indicating that the nonmedical analysis N.E.2d 372; S(tue e.e rel. Moss v. bulus•. Conan. (1996), depends on the claimant's titnetional capacity). 75 Ohio St.3d 414, 1996 Ohio 306, 662 N.E.2d 364. In [*P42] Tlte entployer also argues that all the evi- ulandalnUs, the issue before the court is whether the dence indicates that the claimant was and is capable uf commission's order was supported by "sonie evidence" sedentary if not ligltt work. Again, the magistrate ciis- [**13] in the record and the conimission provided an agrees. The evidence was susceptible to interpretation, adequate explanation of its rationale. State ex rc:l. Noll v. and the conimission's intetpretation was within its discrc- btr(tcsn'iul Cont. (1991), 57 Ohio St. 3d 203, 567 N.E.2d tion. It is true that, as of Septentber 2001, Dr. Williams 245. An order supported by "some evidettce" must be opined that claimant was able to perform Iimited work upheld regardless ot' whether the record inchtdes other within the restrictions outlined by the occupational evidence, greater in quantity and/or quality, that supports therapist. However, when Dr. Williants examineci thc the contrary decision. State es rel. Pass v. C.S.T. Extrac•- claimant in December 2001, she reported that her pain tion Co. (1996), 74 Ohio S0d 373, 376, 1996 Ohio 126, was niore intense. ln Itis report of January 2002, Dr. Wil- 658 N.E.2d 1055. liams described claimant's slow, careful gait, and pain [*P39] In cases where the injured worker retains a and tenderness on examination. He also found significant resielual fimctional/medical capacity for work activities, limitation of back mobility. Dr. Williams explained why the contmission ntust consider not only the claimant's he believed at that time that claimant was unablc to ntedical restrictions but tnust also consider nonniedical work. factors suclt as age, education and work history. Stephen- [*P43] Dr. Williams' opinion of Ianuary 2002 does xon; S7atc, e.v rel. Crty v. Milun (1994), 68 Ohio St. 3d not show a contradiction of his Septentber 2001 opinion 315, 1994 Ohio 296, 626 N.E.2d 666. However, an ex- but simply a revision of [**16] his opinion based otl a ploration of'the nonmedicaUvocational factors is not nec- change in the patieut's presentation during a subsequenl essary when the claimant is medically unable to perform examination. Although reasonable persons could dis- any sustained remunerative eniploynient. E.g., State es agree with Dr. Williams as to whether the patient's in-

APPX 37 Page 5 2003 Ohio 5582, *; 2003 Oltio App. LEXIS 4971, **

creased symptoms were sufficient to remove her from In sum, the commission as the finder of fact was within the svorkforce, his nledical opinion was "some evidence" its discretion to accept Dr. Williams' opinion in awarding on whiclt the comntission could choose to rely. The mag- PTD compensation. istrate tinds no basis for removing the report from evi- [*P44] The employer has not met its burden of dentiary consideration as a ntatter of law. Dr. Williams proving an abuse of discretion by the commission. Ac- focused solely on the industrial injury and the allowed cordingly, the magistrate recomnzends that the court i}acture at L3; there is no niention of any other condition deny the requested writ. causiug disability. The doctor's general reference to "allowed conditions" in the last sentence does not outweigh P.A. DAVIDSON his clear focus throughout the report on a single injurious MAGISTRATE event and a single condition of fractured vertebra at L3.

APPX 38 Page I

^ LexisNexis-

LEXSEE 2005 OHIO 6371

State of Ohio ex rel. Gary A. Miller, Relator, v. Olrio Industrial Commission and Fluor Constructors International, Respondents.

No. 05AP-214

COURT OF APPEALS OF OHIO, TENTH APPELLATE DISTRICT, FRANKLIN COUNTY

2005 Ohio 6371; 2005 Ohio App. LEXIS 5705

Decentber1,2005, Rendered

DISPOSI'I'ION: [**1] [*P3] Pursuant to Civ.R. 53(E)(4), the court conducted a tull review of the magistrate's decision. 'fltc court finds that there [**2] is no error of law or otlier COUNSEL: J. B. Marshall, Jr., for relator defect upon the face of the decision. Therefore, the cuurt adopts the magistrate's decision as its own and the rc- Jim Petro, Attorney General, and Dennis L. [Aufstader, quested writ of mandamus is denied. for respondent htdttstrial Comntission of Ohio. Writ ojtttmtdamus denied. JUDGES: TRAVIS, J. SADLER and McGRATH, JJ., concur. SADLER and McGRATH, JJ., concur.

OPINION BY:'fRAVIS APPENDIX A IN TI-IE COURT OF APPEALS OF OII10 OPINION TENTH APPELLATE DISTRICT (REGULAR CALENDAR) State of Ohio ex rel. Gary A. Miller, Relator. v. DGCISION Ohio Ittdustrial Commission and Fluor Coustructors In- IN MANDAMUS ternational, Respondents. 7'RA V IS, J. No. 05AP-214 [*PI] In this original action, relator, Gary A. (REGULAR CALENDAR) Miller, seeks a writ of mandamus compelling respondent, MAGISTRATE'S DECISION the htdustrial Cotnmission of Ohio, to vacate its order tlenying relator's application for the alleged loss of use of Rendered on September 16, 2005 his left lmnd, R.C. 4123.57(B), and enter a new order that J.B. Marshnll, Jr., for relator. grants relator's application. Jitrs Petro, Attorney General, aod Dennis L. flu/wr+- [*132] The matter was referred to a niagistrate of rler, for respondettt Industrial Conmiission of Ohio. this court pursuant to Civ.R. 53(C), and Loc.R. 12(M) of the 'I'enth District Court of Appeals. The magistrate is- IN MANDAMUS sued a decision that includes findings of fact and conclu- [*P4] In this original actioo, rclator, Gar,v R. sions of law and recommended that this court deny the Miller, requests a writ of mandantus ordering respondernt rcquested writ of ntandantus. (Attached as Appendix A.) Industrial Connnission of Ohio ( "conimissioti') to %acatc No objection has been 6led to the magistrate's decision. its order denying his tnotion for an R.C. 4123.57(B) scheduled-loss award for an alleged loss of usc of Itis left

APPX 39 Pagc 2 2005 Ohio 6371, *; 2005 Ohio App. LEXIS 5705, **

hand, and to enter an award for a total loss of use of his It should also be noted that the pa- left ltand. tient's job as a pipe fitter is [in] the heavy classification: Findings of Fact: Heavy [*P5] 1. On August 22, 2004, relator sustained an intlustrial injtuy wlrile employed as [**3] a pipe fitter Occasional 100 lbs. ror respondent Fluor Constructors International, a state- Frequent 50 lbs. fund entployer. The injury occurred when relator was geuing up fiom a lunch table and fell onto his out- Constant 20 lbs. stretched left hand. The industrial clainr is allowed for He cannot meet these deniands. "fracture left carpal bone, closed; other postoperative infection, left; fracture left distal radius," and is assigned claim number 02-4I6290. ASSESSMENT: From the Mttsctt- [*P6J 2. On August 28, 2002, relator underwent an loskeletal Evaluation the patient is status "opcn reduction internal fixation bone graft, application post fusion of left wrist. He is now pre- of external fixation device left radius." Tlre surgery was senting witlr a permanent loss of exten- perforntcd by George K. Aitkcn, M.D. According to Dr. sion. His wrist is in a flexed position, Aitketi s operative report, the preoperative and postopera- which is probably not the best position to tive diagnoses were "conrntinuted fracture left distal ra- have a fusion. He Iras lost signilicant tlius." range of motion of his left ltand and tingers and left upper extremity in general, (*P7] 3. On May 20, 2003, physical therapist still has significant weakness thtroughout David Kazee conducted a"Fturctional Capacity Evalua- the [**5] left upper extrentity. I feel like tiori' ("FCE"). Mr. Kazee reported: these deficits are probably permanent and will not improve over what they currently '1'Ite patient's Physical Deniand Classifi- are. There was no symptoni niagnification cation is light-medium: or symptom exaggeration denrmistratetl Light-Mediuni by this patient during the Musculoskeletal Evaluation. Occasional 35 lbs. *** Frequent 15 lbs. Comments: The patient's left hand is Constant 5 lbs. basically not useable for working activi- Stand/walk ties. He has to compensate with his trunk *** and shoulder to get into positions to be able to use his hands. We allowed the pa- Restriction use by the patient is basi- tient to be tested in comfortable positions, cally any significant left upper extrernity which are not really functional positions. nse. 'I'he patient can do no reaching over- In short, due to his wrist being in a per- hcad with the left upper extremity, [**4] manent flexed position antt lacking supi- no crawling and no pulling or pushing nation and pronatiou he has to conipen- with tlte left upper extremity. He is basi- sate with his shoulder and u'unk, which is cally restricted from any occupation that eventually going to lead to otlier nntscu- requires left tipper extremity use. The pa- loskeletal problems. His inability to ma- tient can drive a family type vehicle but I nipulate fine objects rules him out for be- doubt he can drive a comnrercial vehicle ing good on any type of assenrbly. The requiring a lot of heavy turning. At this patient had signiftcant increase in Itand point, the patient has difficulty getting discomfort, but considering his pathology, hand in position that he can turn a steering this would be considered norntal. wlteel safely. The patient is not to do any *** overhead reaching or crawling or pulling with the left upper extremity. * * * His * * * The patient's job tleniand as a left upper extremity is probably at maxi- pipe fitter is in the heavy category to very mum inrprovement. heavy category for Physical Demaod

APPX 40 Page 3 2005 Ohio 6371, *; 2005 Ohio App. LEXIS 5705, **

Classitication. He is unable to do this and to a 21% whole person impairment. I be- it is the personal opinion of this [**6] lieve this is solely related to Iiis injury and evaluator that he will never [be] able to do does not have any element of previous this again. It is also the opinion of this problems or part of a norntal aging proc- evaluator that the light-medium category ess. this patient is curretltly in is probably his maximunr classification aclrievement. It also must be noted that this patient is lini- [*P9] On October 2, 2003, at the request of the ited to minimal to no use with the left up- Ohio Bureau of Workers' Cornpensation ("burcau"), per extremity. Light-medium category is Robert Brown, M.D., reviewed the comntission's file and what Iiis body and right upper extrentity reported: are capable of doing [at] this time. Allowed conditions are accepted as [a] result of [a] fall that fractured [tlte left] [*P8] On July 30, 2003, relator moved for R.C. wrist. [**8] Had surgical fixation of frac- 4123.57(B) scheduled-loss compensation for an alleged ture and developed an infection requiring loss of use of his left hattd. In support, relator submitted 6 weeks of intravenous antibiotics [and] a report, dated June 3, 2003, froni Dr. Aitkeu: surgical debridements. iW [injured worker] had physical therapy ***. Noted * * * He continues to have problenu to have stiffness in wrist [and] fingers. witlt ltis wrist. It's uncomfortable most of 2/21/03 has a 25 tk grip; 6/3/03 xrays the time but if lre uses it to any significant shows fracture healed witlt slight dorsal degree then it will become quite painful. angulation. Dr. Aitken found a 21'% IWP Ilis rangc of motion has not significantly [intpairment whole person]. cltauged. He's not having any signif3cant * * * Based on infornration in tile, nuntbness or tingling and he's had no evi- IW Itas a 21% IWP--tltis is not consistent dence of recurrent infection. with total loss of use of hand. He Irad Iiis FCE which rates hini as able to do ligttt to mediutn activity. Xrays were obtained today and these [*P10] On October 30, 2003, relator was examined. show severe arthritic change within the at the employer's request, by Helen M. O'Donnell, M.D. wrist, no evidence of recurrent ittfection. Dr. O'Donnell reported:

In spite [**7] of his FCE, I don't be- * * * The force of the fall was associ- lieve he has any sigttiGcant realistic ated with a closed fracture of the left clrance to rejoin tlre work force. This is wrist. The x-ray report on the day after in- based upon the severity of his injury, his jury described a comminuted itttra- inability to use his left hand for any sig- articular fracture itrvolving the distal ra- nificant activity, Iiis age and training. dius with mild impaction and dorsal tilt of I believe he is at MMI. I do believe the articular surface of the distal radius. he will likely come to a wrist fusion in the Noted at that time was moderate to severe future. Because this is all related to his osteoarthritis involving the first trape- original injury and treatment thereof, I do ziometacarpal joint. The patient under- believe this would also [be] considered to went ORIF [open reduction internal fixa- be contpensable. tion] 08/28/02, which involved pin inser- tion, bone grafting and application of EF Since he Itas in essence a wrist fusion [extemal fixation] at King's [**9] Daugh- with angleosis [sic] of the wrist at 20 de- ters' Medical Center. Postoperative tilm grees of flexion, 10 degrees of radial de- showed osteoarthritic change in the first viation. digit from the trapezium to the distal pha- Using the AMA Guide to Permanent lanx, including significant osteophyte Impairtnent, 5th Edition, Figure 16-28, formation at the IP joint of the thumb. The 16-31 and Table 16-3, he has a 35% upper procedure was complicated by wound in- extremity impairment which is equivalent fection witlt S. Aureus; readmissiott for

APPX 41 I'agc 4 2005 Ohio 6371, *; 2005 Oltio App. LEXIS 5705, **

IV [intravenous] antibiotics, wound de- of the le@ arm involving [**11] primarily bridement, removal of bone graft, and in- range of the wrist, but also affecting range sertion of antibiotic beads was required. of forearm pronation, supination, strength After discharge, Mr. Miller continued of hand grip, pinch and sensa-tion. It was treatment with IV antibiotics administered offered that the inipairnients docunwnted at honte under supervision of ID, by his would be associated with disabilities in 2 estimate, 6 weeks. This was followed by handed tasks suclt as material lifting, nta- oral antibiotic therapy. At 7 weeks post terial handling, even crawling. Right up- op, EF was renroved and PT [physical per extrentity, trunk and lower extreniities therapy] intiateti. were normal.

Cutrent complaints include pain in Mr. Miller reports ltis surgeon ad- the left wrist and Irand increased witli use, vised him that a wrist fusion migltt be numbuess around the scars, over the considered in the future. thumb and in the 5ngers, index and ring The Contprehensive Vocational As- tingers. In spite of numbness, he has pain sessment suggested Mr. Miller had the in- dysesthesia to touch and to heat, as witlt tellectual and academic abilities to fimc- hot water on the hand. Other complaints tion in entry-level clerical positions, indude de-creased grasp, decreased dex- counter clerk, and sales occupa-tions at terity. The pain is "excruciating" witlt use, the sedentary to light-niediuni level. It brings hint to tears. At rest, there is a dull was suggested that earning a GED and aclle. ltitensity is graded fi'ont 2/10 to improving math skills would help hinr to 10/10 with pulling, for instance. participate in technical college level train- All these signs and symptonts affect ing. [**10] function; Mr. Miller reports he is *** independeut in dressing and grooming witlt loose clothing with his right hand. PHYSICAL EXAM: He helps witlr light house-keeping using * * * On the left, the wrist was fixed one hand; this includes loading the dish- in 30 degrees flexion; there was no pas- washer, folding clotltes, loading the sive or active range elicited. Attempts at waslter finnt ltampers in the room. He passive range were painful. At rest the left cannut carry loads. The patient is inde- wrist was also in a posture of ulnar devia- peudent in use of the riding lawnmower, tion 20 degrees; no active range could be but cannot trim with a "weedeater". demonstrated. Attempts at passive range Medication use is OTC pain medica- were painful and did not move the wrist. tion; although he has [bcen] prescribed On the [**12] left MCP [nietacatpo- uarcotic analgesia, he does not like side phalangeal] extension was full; niaxinium effects and only uses for severe exacerba- MCP flexion was 40 at the thunib and 80 tion of paiu. at digits 2-5. Left thumb IP [interpltalangeal] flexion was quite littuted at Review of therapy notes suggests this 10 degrees; this could not be increased patient gave good effort and was an active passively. Left finger PIP [proxinial inter- participant in his own therapy program. In phalangeal] tlexion was 70 degrees active spite of extensive treatment and good ef- and passive. DIP [distal interpltalangeal] fort, wrist range never reaclted goals set, flexion was limited to less than 40 de- but, in fact, decreased over time with fu- grees. Because of these flexion limits and sion into flexion and ulnar deviation. abnormal wrist posture, the thunib could Maxinium wrist extensiott was 12 degrees not be brought into apposition to the fin- passively 11/22/02. Dr. Aitken's notes ger pads. The thumb could be adducted document a flare of pain and inflanuna- against the index finger to produce a tion in March 2003. At the time of func- pinch. tional capacity evaluation, May 20, 2003, the left wrist was described as fused into Xrays provided by the patient were tlexion of 20 degrees. The assessment was reviewed. There is coni-plete loss of the that Mr. Miller had significant impairment wristjoint space.

APPX 42 Paee 5 2005 Ohio 6371, *; 2005 Ohio App. LEXIS 5705, **

[*P11] Following a 7anuary 21, 2004 hearing, a [*P14] On March 27, 2004, another SHO mailed an district hearing ofticer ("DHO") issued an order deuying order refusing relator's administrative appeal from the rclator's motion for a loss of use award. The DHO's order SHO's order of Marclr 2, 2004. status: ['P15] 11. On March 3, 2004, relator, Gary R. Miller, filed this mandamus action. The District Hearing Officer finds tlte injured worker had not established that he Conclusions of ]aw: sustained a total loss of use of his left [*P16] It is the magistrate's decision that this court Itand, pursuant to O.R.C. 4123.57(B). deny relator's request for a writ of mandamus, as more Accordingly, his request for a total fully explained below. loss of use award is denied. [*P17] R.C. 4123.57(B) provides for conipen.sation -fhe medical evidence does not estab- for scheduled losses: lish that the injured [**13] worker suffers from contractures and/or ankylosis to such [f the claimant has suffered the loss of an extent as to render his left hand as use- two or more fingers by amputation or an- less as if it were amputated. kylosis and the nature of the claintant's employment in the course of whiclr the In fact, the reports of Drs. O'Donnell, claimant was working at the tinte of the 10/30/2003, Aitken, 06/30/2003, Brown, injury or occupational disease is such that 10/02/2003 and the Functional Capacity the handicap or disability resulting from Evaluation of 05/20/2003 all indicate the the loss of fingers, or loss of use of tnt- injured worker still has some use of the gers, exceeds the normal handicap or dis- hand. ability resulting from the loss of fingers, or loss of use of fingers, the adniinistrator may take that fact into consideration and [*P 12] Relator adntinistratively appealed the DHO increase the award of conipensation ac- order of lanuary 21, 2004. cordingly, but the award niade slrall not exceed the amount of compensatiotr tor [*P13] 9. Following a March 2, 2004 hearing, a loss of a hand. staff hcaring officer ("SHO") issued an order stating: For the [**15] loss of a hand, one The order of the District Hearing Offi- hundred seventy-five weeks. cer, from the hearing dated 01/21/2004, is Affirmed with additional reasoning. After reviewing all of the evidence on [*P18] Two cases cited by relator are instructive. flle, it is the order of the Staff Hearing Of- Both cases will be extensively discussed here. ficer that the injured worker's tnotion, [*P19] In Stctte ex t-el. Alcoa 6uilding Procli« ls r. filed 07/30/2003 is denied. Dtdus. Comx+., 102 Ohio St.3d 341, 342-343, 2004 Ohio The injured worker has failed to show 3166, at P10, 810 N.E.2d 946, the court succinctly set that he has total loss of use of his hand. forth the historical developnient of schedtded awards li>r Functionally used does not equal total loss loss of use under R.C. 4123.57(B). The Alc•oa court of use of the hands [sic]. states: The injured worker demonstrated that Scheduled awards pursuant to R.C. lte has movements in his hand. He is able 4123.57(B) compensate for the "loss" of a to niove his f^ngers. body member and were originally con- Staff Hearing Officer also notes [in] fined to amptnations, witlt the obvious ex- Dr. Aitken['s] report where he noted ceptions of hearing and sight. In the "thumb cottld be adducted against the 1970's, two cases--State ex rel. Gnxsntumt [**14] index finger to produce a pinch" v. (ndus•. Corurtt. (1975), 41 Ohio St. 2d (08/28/2002). 64, 322 N.E.2d 660, * * * and State e.c rel.

APPX 43 Pa^c 6 2005 Ohio 6371, *; 2005 Ohio App. LEXIS 5705, **

Walker v. 6tdus. Cornm. (1979), 58 Ohio peals observed, the ability to use lifeless St. 2d 402, 390 N.E.2d 1190, * * * -- con- legs as a lap upon which to rest a book is sn-ued "loss," as similarly used in R.C. a function unavailable to one who has had 4123.58, to include loss of use without both legs removed, and under an absolute sevet'ance. Gazstnarut and Wulker both equivalency staudard would preclude an involved paraplegics. In sustaining eaclt award. And this will always be the casc in of their scheduled loss awards, we rea- a nonseverance situation. If nothing else, soned that "for all practical purposes, rela- the presence of an otherwise useless limb tor has lost his legs to the same (** 16] ef- still acts as a counterweight--and hence an fect and extent as if they had been ampu- aid to balance--that an antputee lacks. Al- tated or otherwise physically renioved." coa's interpretation would foreclose bene- Gctssrnanu, 41 Ohio St.2d at 67 ***; fits to the clainrant who can raise a man- Walker, 58 Ohio St.2d at 403-404[.] * * * gled arm sufficiently to gesture or poiot. It would preclude an award to sonteone with the hand strengtlr to hold a pack of cards or a can of soda, and [** 18] it wordd bar- I *I'19] In Alc•oa, the claimant sustained a left arnt -as here--scheduled loss contpensation to aniputation just below the elbow. Continuing hypersensi- one witlt a limb segment of sufticient tivity at the antputation site prevented the claimaut fronr length to push a car door or tuck a news- ever wearing a prosthesis. Consequently, the claimant paper. Surely, this could not have been the moved for a scheduled-loss award for loss of use of his intent of the General Assembly in pront- left arnt. ulgating R.C. 4123.57(l3) or of Gussrncmu [*P20] Alcoa established through a videotape that and Wniker. the claimant could use his reniaining left arm to push opeu a car door and to tuck paper under the arm. Never- Pennsylvauia detines "loss of use" tnuch thclcss, ilie commission granted the claimant an award as the court of appeals did in tlte present fur the loss of use of his left arm. case, and the observations of its judiciary assist use here. In that state, a scheduled [*P21] This court denied Alcoa's complaiat for a loss award requires the ctaimant to ctenr- writ af' ntandanms and Alcoa appealed as of right to the onstrate either that the specific bodily Supreme Court of Ohio. member was aniputated or tlutt the claim- [*P22] Affirmiug this court's judgment and uphold- ant suffered the pernianent loss of use of ing the commission's award, the Alcoa court explained, the injured bodily niember for all practical at 1'10-15: intents and putposes. Discussing that standard, one court has written: * * * Alcoa urges the most literal interpretation of'tltis rationale and argues that "Generally, the 'all practical intents antl because clainiant's arm possesses some purpose' test requires a more crippling in- residual utility, the standard has not been jury than the 'industrial use' test in urder nret. The court of appeals, [**17] on the to bring the case under section 306(c), su- other lrand, focused on the opening four pra. However, it is not necessary that the words, "for all practical purposes." Using injured mentber of the claimant be of ab- this intetpretation, the court of appeals solutely no use in order for him to have found that some evidence supported the lost the use of it for all practical intents commission's award and upheld it. For the and purposes." Curran v. Walter E. Knipe reasons to follow, we affirm that judg- & Sons, brc. (1958), 185 Pa.Super. 540, nient. 547, 138 A.2d 251. [**19] This approach is preferable to Alcoa's Alcoa's interpretation is unworkable be- absolute equivalency standard. Having so Walker cause it is impossible to satisfy. concluded, we further find that some evi- and Gos.cmann are unequivocal in their dence indeed supports the connnission's desire to extend scheduled loss benefits decision. Again, Dr. Perkins stated: beyond amputation, yet under Alcoa's interpretation, neither of those claimants "It is my belief that given the claini- would have prevailed. As the court of ap- ant's residual hyper-sensitivity, pain, and

APPX 44 Pagc 7 2005 Oltio 6371, *; 2005 Ohio App. LEXIS 5705, **

tenderness about his left distal forearm, Under most circumstances, thet'efore, that he is unable to use his left upper limb Dr. Gibson's report alone would support at all and Ire should be awarded for the the commission's award. Here, however, loss of use of the entire left upper limb [State e.x rel. Schtdtz v. Gtdu.s•. Couun., 96 given ltis symptoms. He has been given in Ohio St.3d 27, 2002 Ohio 3316, 770 the past loss of use of the hand, but really N.E.2d 576] demands that the ntedical as- he is tinable to use a prosthesis since lre sessment be viewed in the context of has had the amputation, so virtually he is claimant's postrecovery physical and work without the use of his left upper limb * * activities. * * *

[*P271 Whether we use the so-called Walker smm [*P23] In State es rel. Timnterttutn Tivsa, btc•. v. ciard of loss, i.e., that "for aIl practical purposes" thc ladus. C'ontnr., 102 Ohio St.3d 244, 2004 Ohio 2589, 809 claimant has lost the hand to the same effect anri cxtent N.E.2d 15, the court granted a writ of mandantus in favor as if it had been amputated or ollterwise physically rc- ol'the employer when the comniission had granted a loss moved, or we use the Alc•oa standard of loss, i.e., that of use award in reliance upon doctors' reports that did not "for all practical intents and purpose" the t:laimant ltas consider the clainrant's actual physical abilities with re- suffered the permanent loss of use of the Irand, the result spect to the body part for which loss of use was being is the same. In either case, this magistrate must conclude sou gIht. that there is no evidence in the record upon which thc cormnission could have based an award for loss of use of Tinnnermtnt, the coniniission award for [*P24] In the hand. loss of ttse of the right hand was based upon the March 11, 2002 medical [**20] file review of Dr. Gibson and [*P28] Analysis here begins with the DHO's tiud- Dr. Bamberger's April 22, 2002 letter. ing: "The nredical evidence does not establisit that thc itytucd worker suffers from contractures and/or ankylo- court found that the re- [*P25] The Timinerlnaa sis to such an extent as to render his left hand as ports of both doctors were seriottsly flawed. Dr. Bam- useless as if it were anipatated." bcrger's report was held to be flawed because it raised questions as to the author's awareness of "(1) the Walker [*P29] In Timmerntan, the court notes that loss of a standard of loss and (2) claimant's post-recovery activi- hand under R.C. 4123.57(B) can be shown under a"tlat ties." ' Tiuuuermmr, at P25. The Timmerman court ex- loss" theory or a "two fingers plus" theory. Tirnnrermarr, plains: at P24. [*P30] Apparently, the above finding of the DI IO * * * Nothing in Dr. Baniberger's report is a rejection of a"two fingers plus" theory tltat relator iudicates that the claimant's degree of loss perhaps presented to the hearing officer. is the fhnctional equivalent of an amputation. He instead recites the claimant's his- [*P31] While it is unclear whether relator argued tory without discussing his current func- the "two fingers plus" tlteory before the commission's tional residuals and bases his loss-of-use hearing officers, relator does not seem to posit the thcory assessnient on claimant's employment his- here in mandamus. In any event, none of the doctors who tory and the fact that the dominant hand is issued reports in regard to relators motion opincd that involved. relator had lost the use of any of the digits of the leli hand due to ankylosis. For example, while Dr. O'Donnell found "left thumb IP flexion was quite lintited at l0 de- I ct. grees" and that "maximuni MCP tlexion was 40 at the tltumb," she did not opine that the lefl thunrb was con- I Slate es rel. Walker v. lndux. Cotnea. (1979), sidered a loss due to ankylosis. 58 Ohio St. 2d 402, 390 N.E.2d 1190. [*P32] Dr. Aitken, relator's surgeon, did not evalu- [*P261 With respect to Dr. Gibson's file review, the ate left digit impairment as did Dr. O'Donnell. Dr. Aitkcn Tumncrntan court, at P29, states that Dr. Gibson "ap- based his 35 percent impairtnent rating for the lefl uppcr pears to be more cognizant of the Walker [**21] loss extremity entirely upon the "wrist fusion, [**23] " not- standard." The Timnterrnan court, at P30, concludes: ing that the left wrist was "fixed in 30 degrees flexion" and that "attempts at passive range of motion were painful and did not move the wrist."

APPX 45 Page 8 2005 Ohio 6371, *; 2005 Olrio App. LEXIS 5705, **

[*P33] In sltort, there is no evidence in the record [*P37] Dr. O'Donnell, wlto evalttated the industrial to support a so-called "two fingers plus" theory for a loss injury for the employer, does not opine that relator has ofhand award. suffered the loss of use of the left ltand. She, in fact, renders no statement whatsoever that could be viewed as an [*1134] 'I'here is also no evidence in the record to opinion that relator has lost the use of his left hand. Ac- support a"flat loss" theory for loss of a left hand. cordingly, Dr. O'Donnell's report provides tto evidence to [*P35] Wlrile Dr. Aitken, in his June 3, 2003 re- support relators motion, port, referred to relator's "inability to use his left haud for [*P38] Dr. Brown, who conducted a file review tor any signiticant activity," he failed to indicate his aware- the bureau, opines that the 21 percent impairment rating standard ness of the Walker standard of loss or the Alc•oa given by Dr. Aitken is "not consistent with tota] loss ol' ol' loss. Thus, under the reasoning set forth in use of hand." Obviously, Dr. Browti s report provides no regarding Dr. Bamberger's report, Dr. Ait- TLruuernrrut evidence supporting an award for loss of use of the Icli ken's report must be viewed as similarly flawed. There is hand. simply no indication in Dr. Aitken's report that Dr. Ait- ken uoderstood the standard for deterniining loss of use. [*P39] Based upon the above analysis, the ntagistrate concludes that there is no evidence in the record to [*P36] Moreover, physical therapist David Kazee's support relator's motion for an R.C. 4123.57(B) awaid opinion (to the extent that it is viewed as accepted by Dr. for loss of use of his left hattd under either the [**251 Aitkeu) that relator's "left hand is basically not usable for "flat loss" or the "two frngers plus" tlteory. working activities" does trot meet the Walker or Alcoa standard for loss of use. As the A(coa court notes, [**24] [*P40] Accordingly, for all the above reasons, it is the "all practical intents and putpose" test used by the dte magistrate's decision that this court deny rclator's Peunsylvania courts requires a more crippling injury than request for a writ of mandanius. the "industrial use" test. Kazee's opinion that relator's KENNETH W. MACKE "left hand is basically not useable for working activities" applies au "industrial use" test thnt is not appropriate MAGISTRATE hcre.

APPX 46 Page I

^ LexisNexis-

LEXSEE 2002 OHIO 3239

State of Ohio ex rel. P.C.C. Airfoils, Inc., Relator, v. Industrial Cornntission of Ohio, and Carlotta S. Binkley, Respondents.

No. O1AP-1152

COLIR'r OF APPEALS OF OHIO, TENTH APPELLATE DISTRICT, FRANKLIN COUN'rY

2002 Ohio 3239; 2002 Ohio App. LEXIS 3287

June25,2002, Rendered

DISI'OSI'I'ION: [** 1] Objections overruled; applica- [*P2] Pursuant to Civ.R. 53 and Loc.R. 12(M) of tion for writ of mandamus denied. the Tenth District Court of Appeals, this tnattcr ^tns referred to a magistrate who issued a decision, including findings of fact and conclusions of law. (Attachc(i as COUNSEL: Schottenstein, 7ox & Dunn, Michacl T. Appendix A.) In his decision, the magistrate Ibund that Short and W illiam J. Barath, for relator. the reports of Drs. Lowell C. Meckler an(i Paul I). Mumma constituted sufficicnt evictencc upou which thc Betty D. Montgomery, Attorney General, and Thomas L. comntission [**2] could rely to support its award ol' Iicitz, for respondent Industrial Contmission of Ohio. pernianent total disability, and fhat the contniission did not abuse its discretion when it failed to explain in its Barkan & Ncff Co., L.P.A., and Randy J. Kilbride, for December 13, 2000 order why it rejected its previous respondent Carlotta S. Binkley. reliance upon Dr. Kiva Shtull's report. The magistratc concluded that the Staff Hearing Offtcer could rely upon JUDGES: KLA'17, J. BOWMAN and BRYANT, JJ., Drs. Meckler's and Mumma's reports to award permanent concur. total disability because the reports detailed claimant's dysfunctional right upper extremity-an allowed condi- OPINION I3Y: KLATT tion-and the associated pain. OI'INI(lN [*P3] Additionally, the magistrate 1'nund that, aftcr the Grst order in this utattet' was vacated, ibe Stal'f llcar- (REGULAR CALENDAR) ing Officer could reweigh the evidence and come to a DI:C'ISION different conclusion, as long as sonie eviclence suppnrted that conclusion. Because the Staff I-learing Ofticer was ON O[3JEC'fIONS'fO THE MAGISTRATE'S DE- only required to identify the evidenee he relied upon in C.ISION rendering his determination, the Staffing Hearing O17iccr IN MANDAMUS did not have to explain wlty he rejected Dr. Shtull's report. Accordingly, the magistrate determined the re- KLATT, J. quested writ should be denied. [*Pt] Relator. P.C.C. Airfoils, Inc., conunenced [*P4] Relator has tiled objections to the magis- this original actiun requesting a writ of ntandainus order- trate's decision, rearguing those nwtters addressed in thc ing respontlent, Industrial Comntission of Ohio ("com- magistrate's decision. For the reasons set Rn'th in the mission"), to vacate its award of permanent total disabil- magistrate's [**3] decision, the objections are oventded. ity compensation to respondent, Carlotta S. Binkley, and to enter an order denying permanent total disability coni- [*P5] Following an independent review of this pensation. matter, we find that the magistrate has properly cfeter- mined the pertinent facts and applied the appropriate law

APPX 47 Paec 2 2002 Ohio 3239, *; 2002 Ohio App. LEXIS 3287, **

to them. Therefore, we adopt the nragistrate's decision as pathetic changes, which have beconie our own, including the 6ndings of fact and conclusions permanent? Ms. Binkley's diagnosis Ims ot' law contained in it. In accordance with the ntagis- been recognized by at least tltree inde- trate's efecision, we deny the requested writ of ntanda- pendent specialists in rheuntatology and ntus. chronic pain as well as anesthesiology. She has benefited partially [**5] fratn Objectiott.c orerruled; chemical cervical synipathectotny, but IVrit of memduuncs c(enied. always remits to her baseline of chronic severe pain. She has had problems• with BOWMAN and BRYAN"r, JJ., concur. gastritis and one episode of GI blccding as a consequence of her non-steroidal anti- AI'PENI)IX inflammatory drug use and requo-es niedi- MAGISTRA'fE'SDECISION cation chronically. She will probably require plrysiciatis visits on approxiniately Rettdered on February 25, 2002 ntonthly basis to update and manage IN MANDAMUS medications. [*P6] In this original action, relator, P.C.C. Air- [*Pl l] I believe that Ms. Binkley is litils, Inc., requests a writ of mandamus ordering respon- permanently and totally disabled from en- cfettt ln(lustrial Coniniission of Oltio ("commission") to gaging in substatrtial gainl'ul work activity vacate its award of pernianent total disability ("PTD") on a regular and a sustained basis due to conipensation to respondent Carlotta S. Binkley and to the injuries for which her claim has been enter an order denying PTD conipensation. approved by tlte Bureau of Workers Compensation. Findin"S of Fact:

[*P7] 1. On Novenrber 30, 1988, Carlotta S. 13iukley ("claintant") sustained an industrial injury while [*P12] 4. On October 7, 1998, clainiant was exam- empluyed as a"tinisher" for relator, a self-insured em- ined, at relator's request, by Kiva Shtttll, M.D. Dr. Shtull ployer tmder Ohio Workers' Compensation laws. As a examined only for the pltysical conditions of the iudus- tinisher, claimant used a pneumatic gun to remove [**4] trial claim. Dr. Shtull's report dated October 8, 1998, excess uretal fivm parts. She also cleaned parts with dry- states: cleaning solutions.

[*P8] 2. The industrial claim is allowed for: "'ren- [*P13] '17te claimant is not capable of donitis right wrist and forearni, gastritis, DeQuervaiu's returning to the position ol' employntcnt discase right hand, trigger thunrb right ltand, reflex sym- which slte held on the date of' injury; pathetic dystroplty right upper extremity; major depres- however, she is capable of sustained re- sion ancl pain disorder." The industrial claim is assigned munerative eniployment with restrictious. claim No. L19708-22. Generally, she sltould be restricted to the sedentary work category with further re- [*P9] 3. On July 27, 1998, claimant filed an appli- strictions that there should be no lifting, cation for PTD contpensation. In support of her applica- carrying, pulling, pushing or manipulating lion, claiinant submitted a report dated July 3, 1998, [**6] any bulky object or any objcct in from her treating physician, Paul D. Mumma, D.O. Dr. excess of one pound when using the right Muntnia's report states: upper extremity. There should be no repetitive or fast paced niotion of the right [*P10] It is my opinion that Ms. upper extrenrity. She should not be ex- Binkley is completely and totally disabled posed to extremes of tetnperature and as a consequence of her severe reflex should not be exposed to laboratory forces sympatltetic dystrophy of her right upper to the right upper extremity. There sltould extreniily. 'rhis began as a tendonitis, be no climbing of ladders or scaff'olds. whiclt was tintreated as a consequence of Essentially, she is restricted to light cleri- delays by the Bureau of Workers' Com- cal work involving printarily the left up- pensation. By the time that Ms. Binkley per extrentity. liad received Irer tardy and inadequate trcatment, she had developed reflex sym-

APPX 48 Pag e 3 2002 Ohio 3239, *; 2002 Oliio App. LEXIS 3287, **

[*P14] 5. On October 15, 1998, claimant was ex- and despite an extensive evaluation, no amined on belralf of the commission by Lowell C. Meck- medical benefit was obtained. She Itas ltad ler, M.D. Dr. Meckler reported: numerous courses of physical tlterapy as well as a stellate ganglion block, which [*P]5] CLAIM ALLOWANCES: De- failed to relieve symptomatology. Quervains disease, right haud; reflex [*P21] *** syntpathetic dystrophy right upper extrentity. [*P22] PHYSICAL EXAMINA- TION: *** Exanrination of this claimant [*P16] *** is limited mainly to tlre right hand and [*P17] CHIEF COMPLAINT: The right upper extrenvty. clainxant coniplained of continuous pain [*P23] Examination of the rigbt in the right hand, arm, shoulder, radiating shoulder elicited diffuse pain on palpation to the right side of the neck. The clainiant and range of motion testing. Anterior ele- stated that this pain has been present for vation is 90 degrees, posterior elevation the past ten years and does not allow her was only 30 degrees. Abduction to 90 de- full use of her right upper cxtremity. Mrs. grees and adduction was 30 degrees. In- 13inkley stated that she does have stomach ternal rotatioti was 50 degrees and extcr- pain occasionally on taking medication or nal rotation was 40 degrees. cating spicy footl. [*P24] Examination of the right up- [*P]8] HISTORY OF PRESENT per arm and riglit elbow again denton- ILLNESS: The clainiant stated that she strated diffuse pain witlr palpation. No de- was employed by PCC Airfoils Inc. for 2 formities were noted. No loss of range of years. She was using an air [**7] gun and motion could be ascertained. cltanging the bit when her right arnt struck a ntetal table. Immediately aftcr her right [*P25] Examination of tlre rigltt arnt hit the ntetal table, it began to swell forearm, wrist and Irand dentonstrated with a lot of pain. The claimant went to discoloratian of the forearni and hand, see the plant doctor and was sent to the with a trace of swelling in the distal fore- emergency room for an x-ray of the right arm. There was moderately severe pain on arm. No fracture was noted. palpation of the distal forearni and wrist. Clvonic skin changes were noted. The [*P19] The patient returned to work claimant was unable to grasp with her on light duty after two weeks. Three right hand. It was estimated that she re- weeks later, the claimant stated that she tained about ten percent range of ntotion returned to heavy duty. While using the in this area. air gun the claintant stated that she started experiencing swelling and numbness in [*P26] Examination [**9] of the the tips of her fingers, along with her right right hand demonstrated diffuse pain on elbow swelling. Mt's. Binkley stated that palpation and involved all five digits. she was unable to use her right arm and Some swelling was present and chronic hand tbr any repetitive or strenuous ac- skin changes were also noted. AII tive tivities. Over the past ten years, she ltas digits showed marked decrease in range taken Motrin 500mg as needed for pain, of motion, including flexion and exten- whiclr lead (sic) to "stonlach problems." sion. lhe claimant stated she had a bleeding ul- [*P27] *** cer approxintately one year after the accident from taking steroids and Motrin for [*P28] DISCUSSION: The claimant pain. The claimant stated that Prevacid suffered an injury to her right upper ex- does help with her stomach problems. trenuty on November 30, 1988. Her physical exam sltows ntarked cltanges [*P20] The claimant stated that she which are consistent with the diagnosis of lias had numerous injections which have reflex sympathetic dystrophy. 7'hese find- uot been successful to alleviate her right ings fit the term, major causagia, include arnt and hand pain. She also stated she has the four cardinal signs of symptoms of been seen at the Cleveland Clinic, [**8]

APPX 49 Page 4 2002 Ohio 3239, *; 2002 Ohio App. LEXIS 3287, **

RSD, nantely: pain, swelling, stiffness, kneel at all. She cannot handle (seize, hold, grasp, turn) and discoloration. Also, a previous stellate at all. She cannot reach at all. ganglion block was unsuccessful as were [*P33] The form asks the examining doctor to indi- scveral attentpts of Bier blocks. cate whetlter the handling and reaching restrictions arc [*P29] According to the AMA for "RUE, LUE or both" by circling one. Dr. Mccklcr Guides to thc Evaluation of Pernianent I'ailed to circle with respect to handling and reacbing Intpairment, fourtlr edition the following restrictions. deficits are noted: The sensory deficit to [*P34] 7. Following a January 20, 1999 ltearing, a include the area from the elbow distally as staff hearing offtcer ("SHO") issued an order denyine thc well as the shoulder unit and upper arm PTD application. The January 20, 1999 SHO's order re- was considered to be a 48% impairment views the medical evidence of record including tltc Oc- of the rigltt upper extremity. Additional tober 8, 1998 report from Dr. Shtull. The order also ro partial-permanent inipairment is then cal- views the vocational reports of record. The order cun- culated on loss of range of motion. These cludes: values are noted in the pltysical examination which totals approximately a 90% [*P35] The clainiant's physical condition is such impairment of the hand [**l0] and upper that slte is precluded from doing anytlting with her righl extremity. The contbined values table upper extremity except using it as a guide. The Stalf tlren indicates that total impairment is that Hearing Officer finds that considering the clainiant's agc, of 93% of the right ltand, wrist, and education, and work background as already discussed, slruulder. the claimant could obtain or be retrained for entry Icvcl sedentary work [**12] within her restrictions. The Stul't' [*P30] OPINION: 1) The claimant Hearing Officer takes judicial notice also of the fact that has reached tnaxinrum medical improve- there are nrany "one-handed" employees in the gencral nrent. 2) 'flte percentage of permanent workforce. inrpairnient arising front each of the al- lowe(i conditions, amounts to partial per- [*P36] 8. Thereafter, claimant filed in this court a manent intpairmettt of the whole person at mandamus action whiclt was assigned case No. 99AP- 56%. 3) See attached Occupational Activ- 1268, and then referenced to a ntagistrate. On April 28, ity Assessntent form. 4) The claimant can 2000, the magistrate issued her decision, stating: not perfornt any of her former positions of entploynrent. 5) The ciaimant can not per- [*P37] *** Here, where claimant is form any sustained rernunerative work ac- severely restricted in the use of lter domi- tivity. Based on the table on page twenty nant upper extremity, and where the exis- in the AMA Guides the 93% total im- tence of jobs consistent witlt such restric- pairnient of the right hand, wrist and tions is crucial, it was an abuse of discre- shoulder equals partial permanent im- tion for the commission to state summa- pairment of 56% of the whole person. rily that "many" jobs exist for one-handed persons. Some explanation or identifica- tion of the basis of this conclusion was required given the severe restrictions im- I*P31] 6. Dr. Meckler completed an Occupational posed niedically. Activity Assessment form dated October 15, 1998. The trnni asks the examining doctor to indicate by checkntark [*P38] Based on the foregoing, it is the claitnant's capabilities in several occupational activi- the magistrate's decision to recommend ties througltout the day. On the form, Dr. Meckler indi- that this court grant a limited writ of ntan- cated that claintant's ability to sit was unrestricted. How- damus, returning this matter to the coni- cvcr, her ability to stand is "0-3 HRS" and her ability to mission to vacate its order denying PTD walk is "0-3 HRS." Her ability to lift or carry up to ten and to issue a new order, granting or de- pouuds is "not [**11] at all." Her ability to push, pull or nying PTD, in conrpliance with Noll, sto- otherwise mave is "not at all." prn. [*P32] According to Dr. Meckler's report, claimant can use foot controls "occasionally" which means up to one-third of the time. She cannot crouch, stoop, bend or [*P39] 9. On September 14, 2000, tlris cnmt i.c.curd i7s rnenrorttndutn decision which ttdopted the lnagisuvrtr'.s

APPX 50 P'tge 5 2002 Ohio 3239, *; 2002 Ohio App. LEXIS 3287, **

dc•cisinn, grmtted a lintitetl [**13] writ of tnanr(rrmus abuse of discretion for the comtnission to not explain in retmwing the ntatter to the contnti.rsio t to vacate its or- its December 13, 2000 order why it rejected its prccious der denping PTD anr( to issue a new order, granting or reliance [**15] upon Dr. Shtull's report. denrit+g PTD, whic/t complies with State ex rel. Noll v. [*P50] The magistrate frnds: (1) the reports of Dr. (1991), 57 567 N.E.2d btdn.x. Con+m. Ohio St.3d 203, Meckler constitutes some evidence upon which the 245. convnission can rely to support its PTD award, (2) (he [*P40] 10. This court's judgment entry in case No. report of Dr. Mununa constitutes sonte evidence upon 99AI'-1268 was filed on September 15, 2000, which the comnrission can rely to support its PTD award, and (3) it was not an abuse of discretion for the conrmis- [*P4]] 11. On November 17, 2000, pursuant to this sion to not explain in its Deceniber 13, 2000 order why it court's judgment entry in case No. 99AP-1268, the coni- rejected its previous reliance upon Dr. Shtull's report. mission issued an order vacating the SHO's order of January 20, 1999, and referring the matter to the com- [*P51] According to relator, because the allowed missiotis hearing administrator for the scheduling of conditions of the claim are contined to the riglu upper anothen ccaring on the PTD application. extremity, Dr. Meckler nwst have considered nunal- lowed conditions when he found that clainiant: (I) can [*P42] 12. On December 13, 2000, a hearing was only stand and walk for "0-3 HRS," (2) is totally rc- held before another SHO. No new evidence was pt'e- stricted froni lifting and carrying witlrout regard to the sented at the Deceniber 13, 2000 lrearing. extrenrity, (3) is totally restricted fi'om liandling withuut [*P43] 13. Pollowing the hea'ing, the SHO issued regard to the extremity, and (4) cannot crouch, stuop, an ortler grauting the PTD application. The SHO's order bend or kneel. According to relator, Dr. Meckler lails to oPDecember 13, 2000, states: offer any cxplanation causally relating the restrictinns tu the allowed conditions in the claint. [*1344] Pertnanent and total disability compensatiou is hereby awarded from 07/03/1998[.] [*P52] In the magistrate's view, relator's challenge to Dr. Meckler's reports is premised upon an overly sint- [*P45] This order is based particularly upon the re- plistic view of claintant's industrial injury and the clinical ports of Dr. Lowell C. Meckler, M.D., and Dr. Paul findings [**16] of Dr. Meckler. Relator seents to sug- Muntnra, D.O. gest that the industrial injury sinrply involves a substau- J*P46] Claimant was examined at the direction of tial loss of use of the right upper extrentity. Relator tlte Indusn'ial Comtnission on 10/15/1998 by Dr. Lowell seems to ignore the pain factor Ihat Dr. Meckler do C. Meckler, an [**14] Internal Medicine Specialist. Dr. scribes in detail in his report. Meckler concluded that claimant is incapable of all [*P53] Dr. Meckler notes that claimant's chief lirrms uf sustained remmnerative employment whatsoever complaint is that of "continuous pain" in the riglrt uppcr as a consequence of the allowed conditions in this indus- extremity radiating to the rigltt side of her neck. ' I'herc trial claim. This f^nding is adopted by the Staff Hearing was a complaint that the pain has been present for ten Officer. Such a finding mandates an award of permanent years and that claimant has stomach pain from taking tutal disability conipensation without consideration of medications. the "Steplrensoti" factors. [*P54] In his history, Dr. Meckler notes that claim- [*P47] The start date is established as 07/03/1998, ant has had numerous injections, physical therapy, and which is the date of Dr. Munrnia's report. Dr. Mumnra, in stellate ganglion blocks, all of which have failed to re- his 07/03/1998 report also finds the claimant to be per- lieve the pain. ntanently and totally disabled. As the earliest report, Perntanent'1'otal Disability is awarded from that date. [*P55] During his examination, Dr. Meckler elicited diffits•e pain on palpation and range of ntotion testing [*P48] 14. On October 19, 2001, relator, P.C.C. of the right shoulder. Exaniination of the right upper arm Airfoils, Inc., filed this mandamus action. and right elbow demonstrated diffitse paia with palpa- C'onclusions of Law: tion. There was moderately severe priin on palpation on the distal forearnr and wrist. Examination of the right [*P49] Three issues are presented: (1) whether the hand demonstrated rliffuse pain on palpation and in- reports liont Dr. Meckler constitutes some evidence volved all five digits. upon which the commission can rely to support its PTD award, (2) w)rether the report from Dr. Muntma consti- [*P56] In his discussion, Dr. Meckler noted that ttttes sonre evidence upon which the cotnmission can rely claimant has the "four cardinal signs and syniptoms of tu support its PTD award, and (3) whether it was an RSD, naniely, [**17] pain, swelling, stifTness, ancl dis-

APPX 51 Page G 2002 Ohio 3239, *; 2002 Oltio App. LEXIS 3287, **

coloration." He further notes that Bier blocks were un- analyze the vocational factors. It is not the exanrining successful in alleviating the pain. doctor's responsibility to analyze the vocational factors. [*P57] Dr. Meckler opines that claimant cannot [*P64] Accordingly, Dr. Mumma's report is clearly perfornr any stutained remunerative work activity. some evidence supporting the conunission's PTD awartt. [*P58] In the magistrate's view, it is not at all diffi- [*P65] The third issue is whether the commission cult to sce ltow Dr. Meckler could conclude that claimant was required to explain in its December 13, 2000 order cannot perfornr sustained reniunerative employment why it rejected its previous reliance upon Dr. Shiull's given her dystunctiootal right upper extremity, her almost report. ten year history of unsuccessfully treating the pain, and [*P66] In its previous order, the commission relied tlte diffuse pain elicited on palpation or range of motion upon Dr. Shtull's report for its thresltold niedical deter- of her right upper extremity. mination that claimant was niedically able to perforni [*P59] It can be readily inferred from Dr. Meck- sedentary employnient. However, this court subsequently ler's report that the pain is quite debilitating to the point determined that the commission's nonntedical analysis that it impacts the ability to perform sustained remunera- was flawed and, in its judgnrent entry, ordered the coni- tive employment. See State ex rel. Priraskevopoerlos v. mission to vacate its order denying PTD and to issue a !nrlus. Caatm. ( 1998), 83 Ohio St.3d 189, 191, 699 new order, granting or denying PTD, which complies N.E.2d 72; State e.v rel. Unger v. hulrts. Comm. (1994), with Noll, supra, 57 Ohio St.3d 203. 70 Ohio St.3d 672, 676, 640 N.E.2d 833 (suggesting that [*P67] This court's writ of tnandamus directed the the comntission can abuse its discretion by failing to commission to vacate the entire order not just that por- factorpain into its medical determination.) tion [**20] involving the tlawed nonniedical analysis. [*P60] Dr. Meckler's failure to indicate by clreck- Thus, the commission was free to redetermine all the ntark on the Occupational Activity Assessment form that issues relating to the PTD application, and in accordance liftiug and handling [** 18] restrictions are lintited to the with this court's judgment entry, eitlter grant or deny right ttpper extreniity, does not require this court to PTD. eliminate the report from evidentiary consideration. It [*P68] The commission did in fact vacate its previ- secnts obvious f}om a reading of Dr. Meckler's narrative ous order in its entirety as this court instructed. Clearly, report that there are severe liniitatiorrs in the use of the the new SHO hearing the application on Decentber 13, right upper extremity. In fact, Dr. Meckler states tltat the 2000, was free to reweigh the niedical evidence and to examination was "limited mainly to the rigltt ltand and redetcrmine the tlueshold medical issue. This means that right upper extremity." Given that statement, it is clear he was free to reject the Shtull report and to rely upon that the lifting and handling restrictions on the Occupa- the reports of Drs. Mununa and Meckler as long as thosc tional Activity Assessnient report relate to the right up- reports constitute some evidence. Indeed, those reports per extremity. are some evidence upon which a PTD award can be [*P61] In short, Dr. Meckler's opinion that claim- based. ant is unable to perform sustained remunerative em- [*P69] In keeping with well-settled authority, the ploytnent appears premised upon the pain producing SHO who heard the application on December 13, 2000, indttstrial iujttry to the right of her extremity. was only required to cite to the evidence relied upun in [*P62] Turning to Dr. Munmta's report, relator rendering the threshold medical deterniination. Srate ex contends that it "fails to note the allowed conditions in reL DeMrn1 v. liu6rs. Comm. (1990), 49 Ohio St.3d 19. the claint." However, Dr. Mumma acknowledges that his 550 N.E.2d 174; State ex reL Lovell v. lndes. Cantm. opinion rclates to the industrial clainr. Dr. Mumma lists (1996), 74 Ohio St.3d 250, 252, 658 N.E.2d 284. The the industrial claim nunrber and he indicates that claim- new SHO was not reqttired to explain why lie rejected ant has had problems with the Bureau of Workers' Com- Dr. Shtull's report. lrt. pensation. He also clearly indicates that his PTD opinion [*P70] Relator further [**21] contends that be- is preniised solely upon the reflex synipathetic dystrophy cause the second SHO had essentially the same evidence of the right upper extrenuty, [** 19] a reference to one of before him as the first SHO, the second SHO could not tie allowed conditions in the claini. reach the opposite result witltout at least explaining why [*P63] 12elator also faults Dr. Murnnta's report for lte had rejected Dr. Shtull's report. This argument sintply the absence of an intpairnient rating. There is no re- ignores that evidence can be subject to different vicw- quirement that a doctor present an inzpairment rating. points, and that weighing the evidence is the task of the Relator further faults Dr. Muninta's report for failure to connnission. See State ex rel. Draganic• v. brrfas•. C'voa. ( 1996), 75 Ohio St.3d 461, 663 N.E.2d 929; State ex rel.

APPX 52 Page 7 2002 Ohio 3239, *; 2002 Ohio App. LEXIS 3287, **

Tapp . Pat-sec, !r c. (1998), 82 Ohio St.3d 417, 696 Is/ Kenneth W. Macke N.E.2d 591 (connnission not bound by an approved KENNETH W. MACKE closed-period interlocutory order determining that a clai nant is PTD). MAGISTRATE [*P71] Accordingly, for the all above reasons, it is the magistrate's decision that this cpurt deny relator's request for a writ of mandamus.

APPX 53 l'aee I

^ LexisNexis,

LEXSEE 2002 OHIO 3255

State of Ohio cs rel. Laura Stringer, Relator, v. Hamilton Plastics, C. James Conrad, Administrator, Ohio Bureau of Workers' Compensation and The Industrial Com- mission of Ohio, Respondents.

No. O1AP-1157

COURT OF APPEALS OF OHIO, TENTH APPELLATE DIS'I'RIC'1', FRANKLIN COUNTY

2002 Ohio 3255; 2002 Ohio App. LEXIS 3296

June 25, 2002, Rendered

I)ISI'OSI'I'ION: [**I] Objections overrtded; request 1'TD conrpensation pursuant to 9rur cc rrl. Gur v. Alilim for writ dcnicd. (1994), 68 Ohio St.3d 315, 626 N.E.2d 666. [*P2] Pursuant to Civ.R. 53(C) and Loc.IZ. 12(\q) of the Teuth District Coun of Appeals, this nwtter tras COU:NSM;L: Kearns Conipany, LPA, and Michuel A. referred to a magistrate of this cntnt, who cxantined thc Kearns, l in' rclatot'. evidence and issued a decision, including findings of lact and conclttsions of law. (Attachcd [**2] as Appendix Pease, and Richard L. Vorys, Sater, Seymour & LLP, A.) Therein, the nragistrate concluded that the cummis- lianrilton Plastics. Moore, lur respondent sion did not abuse its disctetion in tlenyiug lter aPplrca- tion for PTD compensation and reconunended that this 13euy 1). Montgomery, Attorney General, and Janine court deny the requested writ. I lancock Jones, for respondent lndustrial Comtnission of Ohiu. [*P3] Relator has filed objections to the niagistrate's decision, and the niatter is now before this court .IUDGE5: l'E'fREF?, J. "I'YACK, P.J., and DESHLER, for a full, independent review. J., concur. [*P4] Relators objections to the contrary. lhis court agrees with the ntagistrate's analysis of the pertinent is- OPINION BY: PGIREE sues. Accordingly, for the reasons set fortlt in the magistrate's decision, this cotu't overrules relator's ohjections OPINION and adopts the magistrate's decision as its own, including (RE.GULAR CALE.NDAR) the findings of fact (with a corrected date of May 16, 1988 in the first paragraph of the fintlings uf' lact and a DECISION correction fronr TTD to PTD in the thirteenth paraeraph IN :VIANDAMUS of the tindings of fact) and conelusions of law cuntained therein. In accordance with the magistrate's decision, this ON O13J1'.C'"IIONS TO THE MAGISTRATE'S DE- court hereby denies the requested writ of ntandatnus. CISION PE'I'RP.I'., J. Ohjec•lion.s nverraJed; rorif rlenier(.

1"PIJ Rclator, l.aum Stringer, ltas filed this original TYACK, P.J., and DESHLER, J., concur. uctiou rcqucsting that this court issue a writ of rnanda- mus ordering respondent Industrial Conunission of Ohio APPENDIX A ("contmissiuri') to vacate its order wlueh clenied her ap- MAGISTRATE'S DECISION plication for permancnt total disability ( "PTD") compensation and to issue an order finding that she is entitled to Rendered on Marclt 11, 2002

APPX 54 Pa,c 2 2002 Ohio 3255, *; 2002 Ohio App. LEXIS 3296, **

IN MANDAMUS 6. Because Dr. Randolph indicateel that a ftiuctional capacity examination was necessary, relator was directed Relator, I_aura Stringer, has filed [**3] this origiual to report to Richard J. Wickstrom, PT, CPE. Relator con- action requttsting that this court issue a writ of nianda- tested the issue ofattending this exam; however, [**51 nws oretering respondent Industrial Contntission of Ohio the hearing administrator issued an order tindin, that the ("conunissioti') to vacate its order which denied her ap- exaniination is not a"second" examination hut that it was plication lin pernianent total disability ("PTL)") conipen- a series of tests used to assist the examining plrysiciao in satiun and asked this court to order the commission to his assessment and that relator was required lo attcnd and lind that she is entitled to pTD compensation pursuant to participate utiless slte could show good causc preventint_ Sfurr r.c rrl. Gqtr. Adilun (1994), 68 Ohio St.3d 315, 626 her froni participating. N.L.2d 666. 7. Mr. Wickstroni exantinet[ relator anel issued u rc- Findings of Fact: port dated August 10, 2000. Mr. Wickstrom concluded that relator's lifting abilities were in the sedentary to scd- 1. Rclator has sustained two work-related injuries. entary-light range. I-Ie indicated that relator cotdd lift, Thc lirst injury occurred on August 6, 1987, and has carry, puslt, pull up to fifteen pounds with the exceptiou bectt allowed for nonspecitic cottditions involving the of lter upper lifting and pus'hing being confiued to livc left arm and hand, but specifically disallowed for left and pounds. Relator was unrestricted in her ability ta 5il and right carpal tuunel syndronie and aggravation of preexist- could occasionally stand and walk; occasionally drive ing carpal tuuoel syndrome left and rigltt. The second but never use foot controls witlr both teet; howecer, injury uccurred ou May 16, 1998, and has been allowed could occasionally use foot controls with onc foot; hand fbr: "llcrniatcd disc L4-5 and L5-S1; right foranunal use with botlr hands was restricteet to li'cqttcntly; hand stenosis at L5-Sl; lailed back syttdronte." use with one hand wae unrestrictetl; reaclring with hoth 2. Relator has ha(i two surgeries performed on Iter arms was restricted to occasionally; reachiru, with one back, thc first in 1990. Relator reinjured her back in arm was restricted frequently; stooping and bending was 1992, aud the second surgery was perfornied in 1993. restricted to frequcntly; and relator was precluded Ilnnt crouching, crawling, and clitnbing. Mr. Wickstt'om [**6] 3. Relator last worked in 1996. concluded that, based solely upon Ihe allotve(1 cnndi- 4. ou Marcli 23, 2000, relator tiled the application tions, relator is capable of performing the full range of seeking 11I'I) compensation. [**4] At the time of the jobs requiring sedentary physical demands and a lintite(I application, rciator was sixty-eight years old, Itad com- rauge of jobs that require light physical demands. He pleted thc sixth grade, had worked as a school bus driver, indicated further that the employer had previously cre- a real estate agent, and a barmaid/waitress. ated a job which was cottsistent with her limitations hut that relator liad stopped performing that job due to hyper- 5. Relator was exantined by Dr. David C. Randolptt tension and problems with her hands, lie opined that Nvho issucd a report dated May 23, 2000. Dr. Ratidolph relator had reached maximuni niedical intproventent and cuncluded that relator was capable of relurning to seden- that it was unlikely that she would achieve auy substan- tary NNork activities; however, he reconvnended that a tial functional improvement with any further skilled ther- funclional capacity exaniination was necessary in order apy. to litlly address this issue. Dr. Randolph listed the following functional litnitations: 8. Relator was also exaniincd by Dr. Kenneth R. I-Lanington on October 19, 2000. Dr. I-lanington opincd Based solely on subjective information that she ltad reached niaximum medical intproventent, aud tlte objective physical examination, it assessed a twenty-five percent whole persoti impairnient, is my opinion she should be capable of concluded that she was ttnable to return to lter turmer wurk related activities in a sedentary position of employment but that she would be capable of' pltysical demand characteristic only. She perforniing other work in a sedentary capacity. Dr. Elan- shoulci avoid prolonged work in a single ington completed an occupational activity assessment position but be permitted frequent posi- wherein he indicated that relator could sit, stand, aud tion cltanges as needed. Bending, twisting walk for tltree to five hours; was unrestricted in her abil- and stooping may be performed on a ity to carry, push, pull or otherwise nrove up to ten minimal basis. She should avoid lifting or pounds; [**7] could occasionally clintb stairs and reach carrying objects weighing in excess of 10 overltead; was unrestricted in her ability to handle ob- pounds. jects as well as lift at waist and knee levcl; was preclude(I from clinibing ladders, using foot controls with her ri4ht

APPX 55 Page 3 2002 Ohio 3255, *; 2002 Oltio App. LEXIS 3296, **

t'oot, crouching, stooping, bending, and kneeling as well catiou as a potential barrier to employmeut. Her priur as reaching at floor level. work history indicated that she has denronstrated tentperaments for perforniing repetitive activities and deul- 9. An entployability assessment was prepared by ing with people. He noted further that her senii-skilled Mark A. Anderson, MS, LPC, CDMS, dated September work history reflected an ability lo overconie her mar- 28, 2000. Pursuant to the medical reports of Drs. Haning- ginal education and to obtain eniployment despite not ton and Randolph, Mr. Anderson concluded that relator possessing a high scltool diploma. could perform the followingjobs: 11. On November 1, 2001, relator tiled a tnotion "rclemarketer, Information Clerk, Ap- asking to depose the vocational expert, Mr. Anderson. In pointment Clerk, Patciter, Security Cam- her motion, relator sought clarificatiou as to several is- era Monitor, Docuntent Preparer- sues pertaining to conclusions reached by Mr. Andcrson. Microtilm, Order Clerk-Food & Bever- Nowhere in her motion did relator indicate that there was age, Film Touclt-Up htspector, Touch-Up a substantial disparity between the report of' Mr. Ander- Screener Printed Circuits, Sorter, Credit son and the reports of any otller vocational experts. Authorizer, Bonder, Taper, Ampoule 12. By order dated January 18, 2001, a staff hearing Sealer, Preparer. officer ("SHO") denied relator's f**10] request as follows: Mr. Andcrson opined that, at age sixty-eight, relator Following review of the claini file and all relcvant wuuld hav'e ntore difticulty than her younger counter- evidence, it is the finding of the Stafi- Hearing Officer parts in learning new skills but that the occupations lie that the clainiant's niotion is unreasonable because the listed were entry level occupations that did not require reasons set forth by the claimant's ntotion nierely state complex tasks. lie noted that the highest level of school- the opinions and conclusions of Mr. Anderson with ing she completed was the sixth grade and that she ltad which the claimant disagrees. The claimant has not pro- no diplonia or GED. However, lie noted that she [**8] vided any other evidence whiclt would contradict the had obtained a real estate ticense which had lapsed be- conclusions of Mr. Andcrson and demonstrate any type cause she had not contplied witlt the continuing educa- of substantial disparity. Therefore, it is the order of the tion requirements. With regard to her work history, Mr. Staff Hearing Officer that the claimant's motion is de- Auderson noted that relator has worked in skilled and nied. The processing of all pending issues is to resunte. scmi-skilled jobs and that lter work as a real estate agent, 13. Relator's application for P1'D compcnsation was being skilled, wotdd ltave required the ability to read, heard before an SHO on March 20, 2001, and resulted iu write and perfornt basic mathematical funetions. He conan order denying relator's request for TTD compensation. cluded that it was unlikely that relator would benefit The SHO relied upon the reports of Drs. Raudolph and liont a rentediation program but restated that she was Hanington, and Mt'. Wickstrom, Anderson, and Joltnston. capable of entry level sedentary occupations. He con- Based upon the reports of Drs. Randolph and Haningtou, cluded that if relator were to actively seek employment tlle SHO concluded that relator retained the physical she would benefit tromjob placement assistance to learn functional capacity to perform eniployment activities how lu market herself to prospective employers. which are sedentary in nature. After summarizing the IU. An employability assessment was prepared by vocational evidence provided in the reports which werc Craig Johnston, MRC, CRC, and dated January 20, 2001. submitted, the SHO concluded as follows: Mr. Johnston notcd that relator's past work history re- [**11] The Staff I-learing Officer finds that the quirett her to deniotutrate seventh to eiglrth grade reasmt- claimattt's age of 69 years is a burrier to thc claimunt nlg and Illnguage proficiencies as well as fourth to sixth with regard to her ability to return to and contpete in the gtade levels of niatheniatical proFciency. Based upon tire workforce. The Staff Hearing Officer further finds, how- restrictions identitied by Drs. Randolph and Hanington, ever, that age alone is not a factor wltich «rould prcvent Mr. Johnston indicated that relator could return to work the claimant from returning to work. "fhe Staff I-Icariug in light assembly, or work unrelated to her past employ- Officer further finds that the claintant's marginal educa- meut [**9] but witltin her basic vocational capacities. tion would be a barrier to the claimant with regard to her lie listed the following positions: "Parking-Lot Booth ability to return to work. The Staff Hearing Officer fur- Attendant, Surveillance-System Monitor, and Bonder." ther 6nds, however, that the claimant has never Itad niore Relator's age was seen as a potential barrier but, Mr. than a marginal education and it has not prevented her Johnston indicated that it would not be, by itself, work from working in the past. The Staff Hearing OffScer fur- prohibitive He noted that relator had last worked in 1996 ther finds that not only has it not prevented the claimant tvlren she was sixty-four years old. He saw relator's edu- from working in the past, it has not prevented the claim-

APPX 56 Page 4 2002 Ohio 3255, *; 2002 Ohio App. LEXIS 3296, **

ant from perfornting skilled eniployment activities in the where the record contains some evidence to support the past. Tlte Staff Hearing Officer further finds that con- commission's findings, there has been no abuse of discre- flicting evidence exists concerrting the claimant's ability tion and mandamus is not appropriate. State ex rel. lo read, write and perform basic math. The Staff Hearing Lewis v. Diarnond Foundry Co. (1987), 29 Oltio St.3d Officer notes, ]towever, that the clainiant's acadeniic 56, 29 Ohio B. 438, 505 N.E.2d 962. Furtltermore, ques- skills did not prevent her from obtaining a real estate tions of credibility and the weight to be given evidencc license. The Staff Hearing Officer further finds that the are clearly within the discretion of the cmimiissio» as fact that the clainiant Ims perfornied [**121 skilled em- fact finder. State ex r-e1. Teece v. lnr6rs. Cunvtt. (1981), ployment activities in the past is evidence tltat the clainr- 68 Ohio St. 2d 165, 22 Ohio Op. 3d 400, 429 N.E.2d ant possesses the intellectual capacity to learn to perfornt 433. at least unskilled eniployment activities in the future. The relevant inquiry in a deternunation of perma- Based upon the report of Mr. Anderson, the Staff Hear- nent total disability is clainzant's ability to do any sus- ing Officer finds that the claimant posses [sic] academic tained reniunerative employment. State c.v rel. Don jun- skills that are sufficient for the performance of many cic v. Intfus. Conrnt. (1994), 69 Ohio St-3d 693, 635 entry level sedentary jobs. The Staff Hearing Officer N.E.2d 372. Generally, in ntaking this determinatiou, the further finds that although the clainiant, at the age of 69 commission must consider not only medical impairmcnts years, would not be a good candidate for rehabilitation or but, also, the claimant's age, education, work record and remediation, claimant is capable presently of entry Ievel other relevant nonmedical factors. State ex rrl. Stephen- sedentary occupations. The Staff Hearing Officer further son v. btdtts•. Conun. (1987), 31 Ohio St. 3d 167, 31 Ohio linds that the claintant has demonstrated the following B. 369, 509 N.E.2d 946. Tltus, a claimant's nndical ca- tentperaments in her work history which niight be help- pacity to work is not dispositive if the claimant's non- I'ul to her in the perfortnance of future employnient: per- medical factors foreclose employability. S'tctte ex rel. fornting repetitive, or short cycle work; dealing with Gay v. Mihrn (1994), 68 Ohio St.3d 315, 626 N.E.2d 666. people; making judgments and decisions and influencing [**15] The commission niust also specify in its order people in their opinions, attitudes, and judgments. The what evidence has been relied upon and briefly explain Staff liearing Officer accepts the residual functional ca- the reasoning for its decision. State ex ml. Noll v. lndus. pacities opinions of Dr. Hanington and Dr. Randolph. Conmz (1991), 57 Olrio St.3d 203, 567 N.E.2d 245. Based upon the opinion of Mr. Anderson, the Staff Hear- ing Officer finds that the clainiant would be capable of Relator raises the following tliree arguments in this perfbrnting [**13] the followingjobs inmiediately: Se- niandamus action: (1) the convnissinn abuscd its discre- curity Camera Monitor; Document Preparer-Microfilnt; tion by finding that relator was obligated to undergo a Order Clerk-Pood and Beverage; Film Touch-Up Inspec- functional capacity examination requesteci by Dr. tor;'lbuch-tJp Screener-Printer Circuits; Sorter; Bonder: Randolph who examined relator at the request of the self- 'faper; Ampoule Sealer; and Preparer, The Staff Hearing insttred employer; (2) the comniissiott abused its discre- Officer tlrerefore finds that the claimant is capable of tion by frnding that relator was not entitled to take the sttstained remuuerative employnient and is not pernta- deposition of vocational expert Mark Anderson when tlre nently artd totally disabled. Claimant's Application for report was unclear and contradictory on its face; and (3) Permanent and Total Disability filed 3/23/2000 is there- the commission abused its discretion by failing to ade- forc denied. quately specify and explain the conrbined impact of all of the nonmedical vocational factors as required in Stephen- 14. Thereafter, relator filed the instant mandantus son, supra. For the reasons• tlmt fbllovv, this magisu-ate actiott iu this court. Jinds• thut relrttor's• mgwnents lack nterit. ('onclusions of Law: R.C. 4123.651 provides for dte esuminution o(u In order for this court to issue a writ of mandannts as clnintant by a pirysic•ian of the ernployer's c•lroic•e rord a remedy ti-om a determination of the commission, rela- provides in pertinent pru-t as Jollows: tor nmst show a clear legal right to the relief sought and that the commission has a clear legal duty to provide (A) The enrployer of a [** 16] clairutmt sucli relief. Sttue e.r rel. Pressley v. Indus•. Contnt. rvho is ir jur•ed or clh'trbled in the course nf (1967), 1 1 Ohio St. 2d 14], 40 Ohio Op. 2d 141, 228 his employment ntay require, wit/tout the N.E.2d 631. A clear legal right to a writ of nrandanitts approval oJ'the adntUti.s•trtuor or tJre in- exists where the relator shows that the conrnrission dustrittl conunission, drtrt the clnbnant be abused its discretion by entering an order which is not examined by a pdysic•iarr of tJte employer's stipported by any evidence in the record. State ex re! choice one time upon trm• issue asserted Elliotl r. Inaltis. C'omnt. (1986), 26 Ohio St. 3d 76, 26 by the entployee ***. Arrv Jitrtlter• requests Ohio B. 66, 497 N.E.2d 70. [**14] On the other hand, Jorr medical exantirtations sltull he nmde to

APPX 57 Paoe 5 2002 Ohio 3255, *; 2002 Ohio App. LEXIS 3296, **

the c•onuaission svhich shall corts'irler arrrl she present any perx•uasive reasons evidencing good rulc on the request. The ernployer shall cause. initinted pay the cosv oftrny ermninations• The SHO concltrrlerl that the eneployer was not re- br the enrplover. quiring relator to s•ubrnit to a second c.rrnnination. In Ohio AdncCorle 4123-3-09(a) and looking at (5)(b), it is appru•ent thrtt there is a eerrain (b) p+"ovide arlrlitiorrally, in relevant part, amount of dis•cretion svhereby the c•onunis•.sioa cm+ re- a.c follows: quire a clainrant to s•ttbrnit to a src•orrl medical e.rantino- tion at the ernployer's request. As such, d+ere is no abso- (a) !n no event will the claimant be lute right as relator contends thal she svotdd only bc e.cmninerl more than one tirne at the re- forcerl to submit to otte medical exantinutian at the crrt- ques7 of tlhe employer on atty is•stre that is ployer's re9ues't. Instead, it is apparent that a seconrl u.v.ee+rrd bv the claimant w- which is to be examinatiort rnrry be required if the e+uployer asserts lhat con.sidered bv die commission, rlm'ing the the adrlitiortal medical examination i.s essential in the time that thc s'pecific matter asserted or defens'e of the claim by the employer. Civen the farrgo- rentains pending fr- thut is in con troversy irtg, relator has not demonstrated an abuse of di.cc•rettrw nol nrljudicution before the btu•eau or in tltis• regar-rl. c•onuuis.rion. Relator• also contenrls that the c•ornntis.sion abused (h) lftfter a ntedical examination of its tlisz•rctiot by rlenving her the opportm+ile to rlrpo.sz• tl+v cdairnant rnrrler paragraph (A)(5)(a) of vocrrtiorutl expert, Mm'k Auderaon. R.C. 4123.09 vr.sts this nrle on ru+ issue tltat retnains in cort- t/re commission with the rnrthor-ily to rdlow the taking of u•over.sy and has ttot been finally atjttdi- depos•itions• and provides asfollows: c•ated, an employer ass'er'1s that an rrrlrli- tional nrerlical exaneination by a rloc•tor of bt c•lairns ftletl [**19] bcfore the indu.s- essential the e+uployer's choice is [**17] trial contrnis•sion *** by injured ernploy- in the rlcfens'e of the c•laim by the ern- ees *** ort ac•cotaat of lnj+uy *** strs- ployer. svritten reqtre.s•t jor such an exatni- tained by s•uc•fe ernployees• in the c•otn.s•e of nation shull be submitted to the hear-ing their ernployrnent, the conuuis•sion *** is adnrinh7rator only in cases where there umy catrsr depositions of witnesses rexid- a dis•ptue as to the r¢quest for additional iug within or svithotrt the .s7ate to be takerr c•xruninatiort. *** in the rnaruua' prescribed by lrnv for the taking ofdepo.ritions in civil actions in the cotu't of c•ornmon pleas.

All rcnsontrble expenses of.s'uc•h examination, irrcdurling arq trnvel expens•e .sl+all be pctid by the entployer irnntc- Ohio Adm.Corle 4121-3-09(A)(G) provirlcs a Inrocc- rlirueh• upo+r the receipt of t/re billing. *** rha•e for obtaining the oral rlepositiome af mr intlu.sn'iul commission physic•ian. Ohio Adn+.Code 4123-3- Rrlutor directs tJris c•otu't's' attention to (A)(5)(a) anrl 09(A)(6)(d) enumerates the fac•tors to be considered in is aot (b). Obviously, pursuant to (5)(tt) the enrployer determining tlte reasonableness of a request far a rlepu- onlr entitled to have rehuot' e.caniined one tilne on any s'ition tmtl provides, in pertinent part: issue thur is asserted bt' relator. In the present cas•e, the emplqrer requirud that r•eltunr be seen by Dr. Ranrlolplr. *** Whether tt substcnrtiul disparity r.r- Hou•evcr, within the borlv of Dr. Rmulolph's report, lie ists between var-iotes orerlical repords on spccific•tdly norerl that a junc•tionrd capacities evalutuiort the is's•tte that i.s' under contest, whether rvrrx nece.s•.cary in order to fully address the issue of one nverlic•al report was• relierl upon to the srhether relator cordd return to s'erlentmy work activities. exclusion of others, anrl svhether the re- The relator challenged tltis request and ihe tnattcr- was qttest i.sjor harassment or delay. *** heard hefo+'e an SHO. The SHO specifically cottcluded thut the upcoming esnrnination svith Mr. Wickstrorn was• nnr a seconrl exanrinatiotr btu was part of a s•eries of tests seeking to depose Mr. Andrr- uscd to assist an cxanuning physician in his assessment, Relator filerl a motion ruui rn•dcred relator to attend [**18] ernless• she could s•at and the rnatter was heard before an SHO who dertic•d .rhow good crmse preventing her fi'o»t participating in the motion after rlelervnining that it was unreasonable ba.vis wa.s that she rlisagreerl with the rc.rting. Relrnor rlirl not appeal this order' nor rloes• becatrs•e relator's only

APPX 58 Pacc 6 2002 Ohio 3255, *; 2002 Ohio App. LEXIS 3296, **

the etper7'c opinion. [**20] Tlte SHO concdurle(1 that In the present c•use, the voctetionrrl ecpc•rYx dirt pro- there u•o.r no rvitlence pre.rented to show that there wtts a vide extensive explanations of their unalvsis of'tlu• rron- substantial tlispurim betw•een the report of Mr. Anderson rnedicalfactnrs•. The commission relied upon threc• roca- ond tltr nports of tlre others. tionnl reports. bt addition, the eonrmi.r.sion cmrrhtclyd its own rmalysis antl again cited the rocationtr/ re•porr uj 77ic• decision whetlrer to grant or deny a party the Mr•. An(lersote The c•ontntis's'ion Jotutd thur relrrtor'.c ogr riglu iu depose a witnes•s• in connection with a workers' ofs•ixty-nine years is a barrier with regmrl to her ubil+n c•onrpensoticm case is rliscretionmy. LTV Steel Co. v. to return to compete in the workfbrce; hourver, the hulir.r. Conan. (2000), 140 Oho App.3d 680. R.C. comrnis•sion concluded that age olone is not a)itclor 4123.09 is a permissive statute giving the conunission tvhic•h tvotdd prevent tltis relator from returning to ieork. discretion and indicated the commission may cause Tlte record indicates that reltUor hati work'ed up nrnil shr depositions to be taken. There is no right, as relator as- wrts s•ixty Jow-yctus old. Witlr regard to relntor'.c educa- serts, requiring the comntission to grant a party's request tion, the SHO noted that her marginnl education n•oaltl to take a deposition under any circumstances. In the pre- be a barrier with regards to her ability to return to work. sent case, relator did not indicate in her ntation that a However, the SHO noted that relator Iratl nerer hati substantia] disparity existed between the report of Mr. more than a mtngiDml education in thc• past and thot .vbv Anderson and a report of others. Instead, she merely harl not been prevented front working. Fuvher, tln• .SI!O listed opinions stated by Mr. Anderson and indicated that noted th(it relator had obtained a reul eaTOte license, she wanted to seek clarification as to those issues. Based despite her nlleging thut she wns not tible to rearl, mriie on the record, it cannot be said that the conunission or perform hasic• math rvell. The SHO noted th(it therr abused its discretiou by denying relator's request to de- tvns• conflicting [**23] evidence in the recorrt comrro- pose Mr. Auderson. ing i'el(llor3' ability to read, write nn(1 pe+jornt hasic 1.utly, relator contends that the commissian did not math. The SHO notetl fiu'ther that relator has per/nrnrrd adcquatcly specify and explain the contbined impact of skilled employment rmd th(it she pos.se.vsem the iruellec- all [**21] the nonmedical vocational or factors as re- tual capttcity to learn anrl per/brnt .s•killetl empltq'mrnt quired by Stephenson, supra. Relator contends that the octivities in the fitttn'e. Based upon the report aJ Mr. connuission ntercly noted the nonmedical vocational Anderson, the SHO fbtorrl thttt relator possessed ucu- meclical factors without explaining them. This magistrate rlemic• skills which ctre s•tJfic•ient fiu the performtrnre aJ disagrees. mnny entry levcl setlentary jobs. Thr SHO noterl th(it reltttor's prior rvork bis•tory indicates certain tentpera- In the prescnt case, the conimission determined, that nrents which vvottlrl be helpjid for Irer in dre perlornnmce I}onr a medical standpoint, relator could physically en- of fidttre enrployment• perforrning repetitive or short- gage in sedentary work. Thereafter, the commission c•ycde work; rlettling with people, mtrking jttrlgmenes urtd suninmrized the conclusions based by the three voca- decisions and influencing people in t/reir opinions, utti- tioual experts upon which the connnission specifically tutles, anrtjudgrnents. relied in deuying relator's application for PTD compensation. 'rlte conintission has the discretion to accept onc Relator tlirecYs this c•ourtls attention 1o dre vocutinntd vocational report while rejecting another vocational re- evirlence s•lte submitted; however, the cornnrisxion cho.ce• port. Or, the commission can reject all the vocational not to rely on that vocntionctl expert and lhrat fitct does reports and conduct its own analysis of the nonmedical not cons•titnle an rtbuse of discretion. factors. See .Sttrte e.c rel. Jac'ks•on v. lndtts. Conrrrt (1997), 79 Ohio St.3d 266, 680 N.E.2d 1233. Further, if the vo- Btrs'ed on the faregoing, tltis• rnagis(ratr coricclutlr.s cational reports extensively discuss and analyze all the that relator has not rlenronstratecl thttt the cornmis.cion relevant noonredical factors, the commission does not abused its discretion in denying her applicotion finr P77J ueecl to repeat that analysis in its order. State cc rel. compensation narl reltttor'a rrqttes7 for u writ ojonnnla- Frecnnut r. Inrlus. Contnc(Mar. 17, 1998), Franklin App. mus s'hotdd be denied. [**24] No. 97AP-251, unreportedState ex rel. Hunt v. Indus. /S/Stephasie Bisra Brooks Cotnm. (Sept. 28, 1995). Frnnklin App. No. 94AP-l659, mtre•ported (Memorondton Dec•ision); (Mentornndmn Decision). [**22]

APPX 59 Page I

(o LexisNexis•

LEXSEE 1990 OHIO APP. LEXIS 5199

EVERETT O. ZINN, et al., Plaintiff-Appellee/Cross-Appellant v. BILLIE N. LEACH, et al., Defendant-Appellant/Cross-Appellee

Case Nos. 90-CA-03, 90-CA-08

Court of Appeals of Ohio, Second Appellate District, Champaign Counfy

1990 Ohio App. LEXIS 5199

October 15, 1990, Appeal considered Noventber 29, 1990, Rendered

PRIOR IIIS'1'ORY: [*1] Appeal from C.P. No. 89- (4) did the trial court err in overruling a motion for new C I V-21. trial. In his cross-appeal, Zinn presents two issues for our twnsideration: (1) did the trial court err in overruling a COLINSEL: John A. Snialley, Young & Alexander Co., ntotion for prejudgment interest; and (2), did thc trial L.P.A., Dayton, Ohio, Attorney for Plaintiff- court err in defcrring a decision on a supplemental pleael- Appel le e/Cross-Appe I lant. ing to recover insurance proceeds pursuant R.C. 3929.06 pending the outcome of Leacli s appeal to this court. Francis S. McDaniel & David E. Beitzel, Freund, Freeze & Arnold, Dayton, Ohio, Attorneys for Defendant- For the reasons stated below we overrulc Leaclis Appel l a nt/Cros s-App el lee. four assignments of error. We likewise ovcnvle Zintis assignment of error regarding the trial court's decision to Karl F. Paulig, Urbana, Ohio, Attorney for Defendant. defer consideration of his supplemental petition pending the outcome of a direct appeal to this court. The trial Willium L. Haventann, Pickrel, Schaeffer & Ebeling, court's decision on these ntatters will be al'firnied. Dayton, Oltio, Attorney for Defendant Nationwide Insur- However, we reverse the trial court's judgment as it ance Co. concerns Zinn's claim for prejudgment interest. Accord- ingly, the matter will be remanded for entry ofjudgment JUDGES: Grady, J. Wolff, P.J., and Brogan, J., concur. for prejudgment interest. OI'INION BY: GRADY 1. OPINION Facts OPINION On March 25, 1985, Everelt Zinn was injured when the vehicle he was driving was struck broadside at :m 1'his is a consolidated appeal from the trial court's intersection by a velticle driven by Billie Lcaclt. Zinn, a judgmcnt awarding plaintiff-Appellee Everett O. Zinn $ titnbernian and recording studio owner, rcceived a C- 400,000 in contpensatory damages for injuries suffered shaped laceration of the [*3] scalp which lelt pernianent in au automobile accident. Both parties have filed ap- scarring, tightness and nutnbness of the scalp. lie also peals cltallenging various parts of the proceedings below. sustained injury to his inner ear resulting in permanent In Itis appeal, Leaclr presents four issues for our con- hearing loss in one ear, permanent dantage to the semi- sideration: (1) did the trial court err in overmling various circular canal with resulting disequilibriunr or vertigo, inotions concerning discovery matters; (2) did the trial and perrnanent tinnitus or ringing in the ear, cottrt err in overruling an objection to Zinn's closing ar- Zinn uotified Leach's insurer, Nationwide insurance gumeot; (3) did the trial cottrt err in allowing a physical Company, of his injuries two days after the accident on tlterapist to offer medical [*2] causation testintony; and

APPX 60 Pa,c 2 1990 Ohio App. LEXIS 5199, *

March 27, 1985. Nationwide assigned the claim to Wil- ernio, Zinn's Nasltville attorney, describing his numcrous liam Wingtield, one of its adjusters. James Sacco was recording awards. Winglield's supervisor. Wing6eld obtained a copy of the Sutter testified that he reviewed the packet and re- police report and took recorded statenieuts from Leach quested the adjuster to obtain an independent ntedical anti Zinn (Wingtield Dep. Tr. 15, 16). Zinn stated that he evaluation (IME), IRS records, a current pltotograph and hacl received treatment for his injuries at two Irospitals wage verification (Sutter Dep. Tr. 16, 27). The IME was and fYont three physicians (Wingtield Dep. Tr. 17). eventually conducted by Dr. Paulson. Paulson was nut On April 8, 1985, at Nationwide's request, Zinn exe- called to testify at trial, a fact noted by Zinn during his cuted an autltorization enabling Nationwide to obtain closing argument. Sutter reviewed the packet but did not medical and employnient records. That sanie day Wing- keep notes on the [*6] material attd could not recall what field concluded that Nationwide owed "property damage the packet contained (Sutter Dep. Tr. 16). Sutter stated and bociily injury." (Sacco Dep. Tr. 8). Wingfteld imme- that numerous documents not then contained in ltis files diately requested information from Drs. Lawrence Mer- would have been transferred to the attorneys representing vis and Ailab Btnt, and Mercy Medical Center. Nation- Leach and Nationwide (Sutter Dep. Tr. 9). wide also sought a report from Dr. Mark Roberto. [*4] In a memorandum dated February 6, 1987, Sutter Nationwide received Mervis's report on May 10, 1985, stated that "this might be a limits case but as we dis- Butt's report on May 22, 1985, and Roberto's report on cussed we don't Itave enough information." (Sutter Dep. September 4, 1985. Tr. 28). A settlement offer of $ 40,000 was discussed at At the end of dte 60 day "pricing period," Wingfield Nationwide on February 5, 1987, but never presented to evaluated Zinn's claini at $ 6,500 (Wingfield Dep. Tr. Zinn (Sutter Dep. Tr. 29). Suttcr admitted that while it 18). "I'his was latter increased to $ 60,000, although nei- was practice to make a settlement offer to let the "Plain- ther W ingtield nor Sacco could recall how they arrived at tiffs attorney know if he wants to get ntore money tltan this ti,,ure (See, Mentorandum tront Sacco to Wingfield, he is asking he has to conic up with more proof' or come January 25, 1986, Wingtield Dep. Tr. 38). Notwithstand- down in with his demand, no offer was made in this case. ing the deterniioation of liability, no settlement offer was (Sutter Dep. Tr. 28, 29). macle by Nationwide (Wingfield Dep. Tr. 26). Sacco On March 6, 1987, Nationwide received a ctemand testified that wltile the general docuntentation supported for settlernent from Zinn's attorney, accompanied by an- $ 60,000 in contpensation, he did not feel suclt an offer other packet of inforniation containing records tiom was justilied absent additional inforntation on wage loss Mercy Medical Center, repotts from Drs. Butt, DuVall, (Sacc(i Dep. Tr. 20). Sacco stated that no settlement was Farrell and Roberto, consultation aud update reports of'fered bccause he "did not want to insult the individual from Mark Main, L.P.T., and nunterous letters front wilh an ot'icr that would not be in line witlt what the inju- various parties concerning the value of various tintber ries were ***"' (Sacco Dep. Tr. 24). and recording [*7] assets owned by Zinn. The accompa- On January 27, 1986, Wingfield formally asked nying letter reiterated Zinn's demand for settlentent and Zinn by letter to transmit all medical and wage informa- warned Nationwide that a complaint would be tiled tion concerning his claim to Nationwide. This was the shortly because the statute of limitation was close to ex- first and only forntal request for records sent by Nation- piring (Letter from Attomey Gnloser to Wingficld, wide to Zinn (Sacco Dep. Tr. 21, 22). March 6, 1987). Nationwide niade no response.

On [*5] February 24, 1986, Wingfield transferred Zinn and his wife filed a conzplaint against Leach on Zintis claim to Jantes Sutter, anotber Nationwide ad- March Il, 1987, seeking $ 1,000,000 in contpensatory juster. Sutter testitied that although the value of the claini damages. was pmbably discussed, he could not recall the value On March 30, 1987, Leach filed separately an an- placed on the claiut. Suttet' admitted that he never com- swer to Zinn's coniplaint and a tltirteen branch request municated to Zinti s atturney, Michael Gnioser, a settle- for production of documents. The Request for Production ment olTer (Sutter Dep. Tr. 9). sought "any and all" documents conecrning statenients On Jtme 16, 1986, Nationwide received from Zinn's by Leach, photos or diagrams of the accident, medical or attorney a packet of ntaterial containing the following: hospital reports concerning the iujuries produced by the photographs of Zinn's automobile and injuries, a letter accident and any other con5nement or treatment for ten front Dr. Mark Roberto to Attorney Gmoser dated May years past, medical opinion and expense, lost inconn: or 27, 1986 describing Zinn's treatment, a letter from Mark earning capacity, tax records for tluee years past, int- Main, L.I'.T., to Dr. Roberto dated May 29, 1986 de- pairment of daily routines, special danmges of any kind, scribing Zinn's treatment, and a letter from Rose Pal- benefits from collateral sources-, investigator's reports, and any evidence intended to he introduced at trial "aud

APPX 61 Page 3 1990 Ohio App. LEXIS 5199, *

any aud all dacuntentary evidence whatsoever". The Re- On the first day of trial, Leach filed three uiotions quest was signed by Nicholas E. Subashi, an attorney in [*10] in limine seeking to exclude from the jury the the eniploy of Nationwide. deposition testimony by Dr. Aftab Butt and two pages ot' exhibits allegedly requested from but withheld by Zinn. [*8] Subsequent to filing his complaint, Zinn made The trial court overruled the motions at an in-chambers additional tlentands for settlentent from Nationwide. On conference conditioned on Zinn providing defense coun- March 17, 1987, Attorney Gnioser wrote Wingfield sup- sel with the requested documents by tive o'clock that plying ]rint with medical and economic documentation. day. Gmoser also den anded settlcnient for the policy limits. Similar letters were sent to Nationwide's attorney, Robert In addition to other witnesses at trial, Zinn presented Burke, on April 14, 1988, November 14, 1988, and De- the deposition testimony of Aftab Butt, M.D., Michael centber 6, 1988. These dentands went unanswered. DuVall, M.D., and Mark Main, L.P.T. Leach objected to Burke did, however, acknowledge on September 15, the testimony of Main arguing that only a medical doctor 1988, receipt ofZinn's income tax retunts could offer ntedical causation testintony.

On June 16, 1987, Nicholas Subashi, the first attor- During closing arguments, Leach also objected to ney to represcnt Leach and Nationwide, withdraw as Zinn's reference to Dr. Paulsmis absence. Tlie court counsel of record and was replaced by Jatnes P. Seguin. overruled the objection. Following deliberations, the jury [3oth Subashi and Seguin were employees of Nation- awarded Zimi $ 400,000 in compensatory damages. wide. Segttiu withdrew as counsel on October 27, 1987, On March 20, 1989, Zimt tiled a nwtion seeking and was replaced by Robert A. Burke. Finally, Burke prejudgntent interest alleging that Leacli and Nationwide was replaced by David Beitzel on January 20, 1989. The had not acted in good faith in attempting to settle the trial court specifically stated in ttte substitution entry that case. Shortly thereafter, Leach tiled a motion for new the trial schedule would remain in effect. trial alleging various trial irregularities, ntisconduct by On April 25, 1988, Zimr subniitted a pretrial state- Zinn in discovery matters and an excessive daniage ntent in wltich lie listed the nanies of witnesses he ex- award. Following a hearing, the court overruled the nto- pected to call for trial. Included on this list were Drs. tions finding that Zinn [*11] Itad failed to show that Butt, Duvall and Roberto and Mark Main, L.P.T. Zinn Leach did not make a good faith effort to settle the case also listed [*9] the exhibits he expected to use at trial. and Leach had failed to establish any irregularities war- ranting a new trial. On July 25, 1988, Zinn filed a motion for sununary judgment which sought, in part, judgment on the issue of Zinn then filed a ntotion pursuant to Civ. R. 15 t'or negligence. On Attgust 15, 1988, the court found Leacli leave to file a supplemental petition to recover insurance negligent in causing the automobile accident and judg- proceeds to satisfy his judgment against Zinn. Sltortly ment was entered accordingly. Leaeh did not offer to thereafter, Leacli filed his appeal to this cotirt. The trial settle the case. court deferred mling on Zinn's supplemental petition pending the outcome of the appeal. Zimr tlien filed his In addition to filing a claim with Nationwide, Zimt appeal and cross-appeal. The matter is now before us on also filed a claint with his insurer, Buckeye Union Insur- a variety of alleged errors. ance Conipany, for daniages under the underinsured mo- torist provision of his policy. Buckeye evaluated the // claint and in Decentber 1988, settled with Zinn for $ 300,000. Defendant-Appellant/Cross-Appellee Leaclis Assi^at- On January l9, 1989, Zinn notified Leach that lie in- ments of Error tended to take depositions from Drs. Aftab Butt and Mi- chael DuVall, and Mark Main, L.P.T., for use at trial. On A. Fc+iltur to Compe! Discoveiy January 23, 1989, Leach's fourth counsel since institution Leach states in his first assignn ent of error: of the action filed a motion to compel discovery and also sought a protective order cancelling the depositions. The THE TRIAI. COURT ERRED TO THE PREJU- court overruled the ntotions. DICE OF DEFENDANT-APPELLANT IN OVERRUL- BJG APPELLANT'S MOTION TO COMPEL DIS- On March 1, 1989, five days before trial, Nation- COVERY, AND MOTIONS IN LIMINE, AND IN AL- wide finally offered to settle Zinn s claim at policy limits LOWING EVIDENCE BY MEDICAL EXPERTS AND was rejected and the niatter proof S 100,000. The offer OF MEDICAL EXPENSE UPON THE SUBJECI'S ceeded to trial. CONCERNING WHICH PLAINTIFFS-APPELLEES HAD NOT RESPONDED TO DISCOVERY UPON.

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Discovery provides a nteans to narrow and sharpen ary 23, 1989 -- alniost two years after the tiling of the the scope of the issues to be litigated between parties to a complaint or a mere six weeks before trial. In the two dispute. State, ex rel. Daggett, v. Gessaman [*12] years between answering the complaint and tiling his (1973), 34 Oltio St.2d 55. "fo this end, Ohio has adopted niotion to contpel, Leach did not depose Zinn or any a liberal discovery policy wltich, subject to privilege, other witness and did not pursue any other avenues ul enables opposing parties to obtain all evidence that is discovery. Meanwhile, Zinn supplied Leach witlt many material, relevant and competent notwithstanding its of the documents requested and provided autliorizatiou to admissibility at trial. See, Civ. R. 26(B)(1). See, gener- obtain such additional niedical records as Leaclt ntight ally, 36 Ohio Jurisprudence 3d (1982), Discovery and want to have from those who provided care to Z.inn, who Depositions, Section 25. Management of the discovery were known to Leach. process lies solely within the sound discretion of the trial Leach's reliance on a broad and categorical demand coutt. See State, ex rel. Daggett, supra, at syllabus 1; for production placed on Zinn the burden of providing all Stegawski v. Cleveland Anesthesia Group, Inc. (1987), documents relevant to Leach's evahtation and preparation 37 Ohio App.3d 78; Smith v. Klien (1985), 23 Ohio of his defense. Yet, Leach could have avoided this quan- App.3d 146. Absent a palpable abuse of that discretion, a dary by pursuing otlter avenues of discovery tlrat would decision granting or denying a discovery request will not narrow and identify the issues involved, i.e., deposing be disturbed by the reviewing court. State, ex rel. Zinn [*15] and his witnesses, or moving to conipel pro- Daggett, supra, at syllabus 1; Smith, supra. See, also, duction of documents sooner than six weeks before trial. Rossntan v. Rossman (1975), 47 Ohio App.2d 103; Criss This he did not do. If Leach was prejudiced by a lack ot' v. Kent (C-.A. 6, 1988), 876 F.2d 259. discovery, it was do more to his own conduct than any "fhe record before tts indicates that before instituting obstruction of the discovery process by his opponent. an action, Zinn sent Nationwide on June 6, 1986, a We conclude that the trial comt did not abuse its packet of information coutaining photographs, niedical discretion in overruling the motion to compel discovery, reports and econoinic loss documents. Zinn sent Nation- the protective order, or the motions in limine. Leacli s wide another packet of [*13] docmuents on Marclt 6, first assignn ent of error is overrtded. 1987, "I'Itis packet contaiued nteclical reports front Drs. Butt, Roberto and DuVall, progress reports Gotn Mark B. Zinn'.r Clo.sing Atgumen! Main, L.P."1'., and a wide variety of economic loss docu- Leach states in his second assignment of error: nreutation. Fttrtlter, on September 15, 1988, Nationwide's attorney acknowledged, by letter, receipt of Zinn's in- MISCONDUCT OF COUNSEL FOR PL.AIN- conie tax returns. Leach nevertheless argues that Zittn TIFFS-APPELLEES OCCURRED IN FINAL ARGU- refused to comply fully with his discovery request. He MENT TO THE JURY THAT DEFENDANT- alleges that the trial court's refusal to conipel discovery, APPELLANT DID NOT CALL DR. PAULSON OF issue a protcctive order, and sustain his niotions in COLUMBUS, AS A WITNESS AND DID NOT PRO- liniine, was error. DUCE MEDICAL RECORDS, AND THE COUIt'[ ERRED IN OVERRULING THE OBJECTION OF Altltouglt attorneys have a duty to cooperate in the COUNSEL FOR DEFENDANT TO SUCH ARGU- discovery process, cf., Royal Indeninity Conipany v. J.C. MENT. Penny, et al. (1986), 26 Ohio St. 3d 31, tltey are not required to act as investigatotss for opposing counsel. Civ. Attorneys have broad latitude in fashioning closing R. 34 is subject to the constraints of Civ. R. 26, which arguments. However, that latitude has lintits. It is fiinda- speaks ot'avoiding undue burden. Broad fornr discovery mental that a closing argument be confined to the ques- requests are not favored because they fiequently burden tions at issue, the evidence presented, and the deductions ihe opposing party with an obligation to engage in an and inferences to be reasonably drawn front the evi- inquiry beyond facts known to him. Thus, one party is dence. See, Dew v. Read (1895), 52 Ohio St. 519; Cotiey con pelled to act as an investigator for tite other, with the v. Shenk (1974), [*16] 39 Ohio App.2d 156, at syllabus party seeking discovery possibly "taking undue advan- 1; Cusumano v. Pepsi-Cola Bottling Co. (1967), 9 Ohio tage of Itis adversary's industry or efforts." Civ. [* 14] R. App.2d 105. A closing arguntent is improper if it argues 26(A). I'his distorts the discovery process by relieving facts outside the record, or makes assertimu or attcmpts the ntuvant for discovery of ttte burden to pursue dili- to draw inferences not supported by the evidence. 11er- gently those avcnues which will narrow the issues and tnao v. Teplitz (1925), 113 Ohio St. 164. provide usetitl inforniation. During rebuttal argunrent, counsel for Zinu stated: I-lere, Leach filed a broad and categorical discovery request on March 30, 1987. No discovery order was MR. SMALLEY: Thank you, your Honor. Ladies sought until Leach nioved to compel production on Janu- and gentlemen, the defendant has suggested what evi-

APPX 63 Page 5 1990 Ohio App. LEXIS 5199, *

dence we didti t produce. Let me suggest we produced At the deposition of Mark Main, L.P.T., the follow- virtually all the evidence in this case. The defendant will ing colloquy took place: have (sic) the opportunity to look for and get any prior Q. * * * I want to ask you to assume certain things. medical records and had four years to have plaintiff ex- autined by their Doctor, Dr. Paulson in Columbus. They didn't call Dr. Paulson. Why ttot'? They didn't produce any prior medical records from 1953 to the present time. Assuming this accident, that subsequent history, and the history that I'nt asking you to assume to be true, that MR. BEITZEL: Objection. the man had no neck and back problems before this accident, then considering upon those things your expertise, THE COURT: The objection is overntled. The experience and skill as a therapist and your findings and commeut is permitted to stay. You nzay proceed. (Em- objective evidence of on-going injtu'y or injury to the pltasis added) date of this last exanrination in 1989, do you hare an opinion, Mr. Main, within a reasonable degree of' cer- ("1'r. 476-477). At no tinte during the trial did either tainty as to the direct and proximate cause of the prob- party refer to Dr. Paulson or present any report he may lems for which you have been treating Mr. Zinn. ltave compiled for the defense.

Zinti s reference to Dr. Paulson's absence was int- MR. McDANIEL: Objection. proper as it sought to draw an [*17] inference not sup- THE WITNESS: Yes, I would say ported by evidence in the record. While Zinn correctly it's as a result o]' the accident. states that counsel could refer to the opposing party's failure to call a tnedical expert who examined a plaintiff *»* for the etefense, see, Penny v. Thurman (1972), 34 Ohio App.2d 190, it is equally correct that the record must MR. McDANIEL: [*19] * * * Well, okay, I will try establislt, as condition precedent to such a reference, that to discuss the subject. Number 1, 1 object to this witness, the medical expert in fact examined the plaintiff for the the physical therapist giving opinion evidence on ntedi- defense. Id, at 191. There was no such evidence in the cal causation. record. Thus, it was improper for counsel to comntent on (Deposition of Mark Main, L.P.T., at 49-50). the absence of Dr. Paulson. Cf., Knotts v. Valocchi (1963), 2 Ohio App.2d 188. R.C. 4755.40 provides, in part: However, we cannot say that Zintis comment was (A) "Physical therapy" means the evaluation and prejudicial. Notwithstanding error in allowing the refer- treatment of a person by physical measures and the use ence, Leach fails to show prejudice; that is, that but for of therapeutic exercises and rehabilitative procedures, tlrc error the outconte of the trial would, in all probabil- with or with out assistive devises, for the purpose of pre- ity, have been different. Cf, Sntith v. Flesher (1967), 12 venting, correcting, or alleviating any disability. * * * Ohio St.2d 107. Here the reference was a singular occur- Physical therapy does not include the diagnosis of a pa- rcnce which took place during rebuttal argument. Given tient's disability, the use of Raentgen rays or radium for the totality of the circumstances and the substantial evi- diagnostic or therapeutic purposes, or the use of electric- dence supporting Zinti s claim, we cannot say that Leach ity for cauterization or other surgical putposes. Physical was prejudiced by the reference. therapy includes physiotherapy. Leach's second assignment of error is, [*18] ac- (B) "Physical therapist" means a person who prac- cordingly, overruled. tices physical therapy as defines in this section, and includes physiotherapist. (Eniphasis added) C. Medical Causation Testimony by a Physical 7lterapis7 In Burress v. Park Cycle & Marine, Inc. (Nov. 7, Zinn states in his tltird assignment of error: 1988), Stark App. No. CA-7492, unreported, the Court of' Appeals for Stark County concluded that R.C. 4755.40 7'HE 7'RIAL COURT ERRED IN PERMITTING precludes physical therapists from giving medical opin- THE TESTIMONY OF A PHYSICAL THERAPIST ions. The Stark County Court of Appeals found ihat a THA7' IN "I'HE OPINION OF THE PHYSICAL physical [*20] therapist could nat "wander outside the THERAPIST, AND BASED ON "REASONABLE DE- statute to give a ntedical opinion as to permanent injury." GREE OF CERTAINTY," THAT THE ACCIDENT Id. at 4. WAS 'fl IE DIRECT AND PROXIMATE CAUSE "OF THE PROBLEMS FOR WHICH (HE HAD) BEEN Though R.C. 4755.40 does not specifically apply to TREATING MR. ZINN." issues of witness competency, we agree with the view of Burress, supra, that the statute precludes physical thera-

APPX 64 Page 6 1990 Ohio App. LEXIS 5199, *

pists 1rom giving diagnostic opinions in testimony as Having reviewed the record, we conclude the trial well as in the form of patient advice and communication. court did not abuse its discretion in overruling the motion Therefore, we must conclude that the trial court erred in for a new trial. Nothing in the record suggests that tlte admitting that testimony. However, the error does not trial court's disposition of this matter was unreasonable, nterit reversal unless it was prejudicial. arbitrary or unconscionable. Steiner, supra. As we noted above, any alleged discovery failures resulted as ntttch The record here indicates that sufficient credible from Leach's conduct as from Zinn's alleged refusal to evidence was presented beyond Main's testimony to sup- comply with the discovery request. Further, given the port the conclusiott that Zinn's injuries were caused by extent of Zinn's injuries, his loss of inconie, and his tii- the collision. Dr. Aftab Butt testified that the permanent ture medical expenses, we carmot say the damage awartl scarring, uumbness and tightness of Zinn's scalp resulted was excessive or the result of passion or prejudice. See. finnt the accident (Deposition of Aftab Butt, M.D., at Civ. R. 59(A)(4). 24). Dr. Micltael DuVall testified that Zinn's permanent hearing and coordination problems resulted froni the We concluded that the trial court did uot abuse its accident (Deposition of Michael DuVall, M.D., at 66). discretion in overruling Leach's Civ. R. 59 nwtion for a Dr. Mark Roberto testified that ntany of Zimis injuries new trial or his alternative request [*23] for remittitur. and later contplaints resulted, cither primarily or secon- Leach's fourth assignment of error is, accordingly, over- darily, froni the accident. Leach presented no evidence ruled. [*21] to contradict these conclusions. ll. We conduded ttrat Leach was not prejudiced by the medical causation testimony of Main. Absent such a AppellantlCross-Appellant Zinn's Assignntent of Errors sliowing of prejudice, we will not disturb the decision of the trial court. See, Sniith, supra. Leaclt's tltird assigtt- A. Sapplementrtl Petitimt ntent of error is overruled. The assignment of error raised in Zinn's appeal U. MuGon Jbr u New Trial states: I.eacli s faurth assignment of ertnr states: THE TRIAL COURT ERRED BY STAYING AP- PELLANTS-PLAINTIFFS' ATTEMPTS TO EXECUTE TIIE 'I'RIAL COURT ERRED IN OVERRULING ON ITS JUDGMENT, VIA A SUPPLEMENTAL PE- MOTION OF DEFENDANT-APPELLANT FOR [A] TITION, WHEN NO SUPERSEDEAS BOND WAS NEW'I'RIAL. FILED BY OR ON BEHALF OF THE APPELLEES- Granting or denying a motion for a new trial lies DEFENDANTS. within the sound discretion of the trial court. See, Lud- Zitm filed a supplemental petition pursuant to R.C. low's I-leirs v. Culbertson (1829), 4 Ohio 5; Beatty v. 3929.06. This provisions states, in part: Hatcher (1861), 13 Ohio St. 115; Steiner v. Custer (1940), 137 Ohio St. 448; Krejci v. Halak (1986), 34 Upon the recovery of a final judgment against aoy Ohio App.3d 1. Thus, whether the trial court erred in firm, person, or corporation by any person * * * for loss disposing of such a motion is detetmined under the tradi- of damage on account of bodily injury or death * * * il' tional abuse of discretion standard; that is, was the the defendant in such action was ittsured against loss or court's attitude unreasonable, arbitrary or unconscion- dantages at the time when the rights of action arose, the able. Steiner, supra. See, also, Earson v. Cleveland Ac- judgment creditor or the successor in interest is entitled ceptance Corp. (1969), 17 Ohio App.2d 239. to have the insurance money provided for in the insurance contract * * * applied to the satisfaction of the 1-each filed a six branch motion for a new trial. The judgnrent. If the judgment is not satisfied within thiity grounds offered in support of the niotion included Zinn's days after it is rendered, the judgntent creditor * * * to failure to comply with the [*22] discovety requests (Civ. reach and apply the insurance money to the satisfaction R. 59(A)( I)), misconduct by Zinn during discovery (Civ. of the judgment, may file a supplemental petition in R. 59(A)(2)), excessive dantages (Civ. R. 59(A)(4)), a [*24] the action in which said judgnient was rendered, in judgntent unsupported by the weight of the evidence which the insurer is made a new party defendant ***' (Civ. R. 59(A)(6)), and various errors of law by the trial (Emphasis added) court concerning discovery related niatters (Civ. R. 59(A)(9)). In the alternative, Leach sought in branch six R.C. 3929.06 provides a means to satisfy an exist- of his motion a seventy-five per cent remittitur of dam- ing judgment against a tortfeasor from titnds generated ages. by his insurance contract with his own insurer. Because the funds are held by the insurer, a separate legal pro-

APPX 65 Page 7 1990 Ohio App. LEXIS 5199, *

ceeding is required to determine the contract and its cov- Supreme Court provided several factors relevant to as- erage. That separate proceeding is properly brought by sessing whether a party failed to make a good faitli ef7ort tlte judgment creditor by way of a supplemental com- to settle the dispute. The Court stated in the syllabus: plaint. A party has not "failed to make a good faitli effort to When the trial court deferred a decision on the sup- settle" under R.C. 1343.03(C) if he has (1) fully cooper- plentental contplaint brought pursuant to R.C. 3929.06, it ated in discovery proceedings (2) rationally evaluated his did not stay any right of execution arising from the risks and potential liability, (3) not attentpted to tinneces- judgntcnt held by Zinn. That judgment ran only to Leach, sarily delay any of the proceedings, and (4) made a good not to the insurer Nationwide. Therefore, the court was faith monetary settlentent offer or responded in good not required to order a supersedeas bond in connection faith to an offer from the other party. If a party hes a with its order of postponement, which deferred a deci- good faith, objectively reasonable belief that lte has no sion on the supplenientat coniplaint until the nterits of liability, he need not make a nionetary settlenient offer. this appeal are decided. We see no error. (Eniphasis added) The assignment of error will be overruled. See, also, Holman v. Grandview Hosp. & Med. Ctr. B. PrujudgtueiU brleree7 (1987), 37 Ohio App.3d 151, 158. Whether the ntovant has met this burden is a factual issue. A trial court's Zinn states in his cross-appeal: [*27] decision awarding or denying prejudgment interest TIIE LOWER COURT ERRED IN FAILING TO under R.C. 1343.03(C) will not be disturbed if supported GRANT PRE-JUDGMENT INTEREST TO THE by competent evidence in the record. Edgerson v. Cleve- PLAIN'I'1FF WHEN DEFENDANT-APPELLANT [*25] land Elc. Illum. Co. (1985), 28 Oltio App. 3d 24. WAS DETERMINED BY SUMMARY JUDGMENT We note that R.C. 1343.03(C) does not require a TO BE NEGLIGENT, THE PLAINTIFF HAD THIR- showing of "bad faith" by the defendant. Rather, as ob- TEEN THOUSAND FIVE HUNDRED DOLLARS ($ served in Dailey v. Nationwide Demolition Derby, ]nc. 13,500.00) IN MEDICAL EXPENSES WITH PERMA- (1984), 18 Ohio App.3d 39, 41: NENT INJURIES AND NO OFFER WAS MADE IN SETTLEMENT LJN'I'IL ONE HUNDRED THOUSAND An "effort to settle" can be son ettting less than "good DOLLARS ($ 100,000.00) WAS OFFERED TO THE faith effort" and still not be "bad faith effort." The ntere PLAINTIPF FIVE DAYS BEFORE TRIAL. failure to do anytlting towards settlement * * * wotdd be R.C. 1343.03(C) provides: a failure to make a "good faith effort to settle" but might well be short of a "bad faith effort" to settle. (C) Interest on a judgment, decree, or order for the payment of ntottey rendered in a civil action based on Thus, the party seeking prejudgnient interest need only tortious conduct and not settled by agreement of the par- establish a lack of good faith, not bad faith. ties, shall be compttted frotn the date the cause of action accrued to ttte date on which the money is paid, if, upon Whether a party has not acted in good faitli to settle motion of' any party to the action, the court determines at a case is a fact-sensitive inquiry that ntust address the a hearing held subsequent to the verdict or decision in circumstances of each case as well as the relevant factors the action that the party required to pay the money failed set out in Kalain v. Smith, supra. Determinations may to make a good faith effort to settle the case and that the vary according to the nature of the claim, the adversary party to wltom the money is to be paid did not fail to role of the party concerned, and the nieans available to make a good faitli effort to settle the case. the party to determine his position in the litigation. [*28] As a condition precedent to receiving prejudgment In this case the negligence and liability of Leach Nvas interest, the movant niust make a two-part showing. clear from the date of the accident on March 25, 1985. First, the movant must establish, ( 1) a valid judgment or Leach collided with Zinn's vehicle at an intersection at decree ordering the payment of money as compensation which Zinn had the right-of-way. Zinn aud his wife gavc for tortious conduct, and (2) a civil action [*26] not set- full statements about the accident. Leach clainted that lie tled by the parties. See, Vanderhoof v. General Acc. Ins. could not remember whether he ignored a traffic control Group (1987), 39 Ohio App.3d 91. device, though he did enter a plea of no contest to that charge. Second, the movant must then establish that the party subject to a civil judgment for tortious conduct As early as April 8, 1985, two weeks after the acci- failed to ntake a good faith effort to settle the dispute. In dent, Nationwide's adjuster concluded that the company Kalain v. Snith ( 1986), 25 Ohio St.3d 157, the Oltio would owe dantages. In February 1987, an adjuster con-

APPX 66 Pagc S 1990 OI»o App. LEXIS 5199, *

eluded that the cotnpany had a policy limits exposure, on liability rendered against theni on August 15, but declined to settle because the conipany lacked "in- 1988. forutatiou" on the claim. The trial court entered summary Leach and Nationwide finally made an offer to settle jttdgntent for Zinn on liability on August 15, 1988, and the [*31] claim for "policy limits" only five days before in Deceniber 1988, Zinn's own insurer paid hini $ trial. Yet, the information then before theni concerning 300,000 in underinsured coverage. Yet, Leach and Na- their risks and liability had been available to thent or in tionwide made no offer to settle the case until March 1, their hands for months or years. The record reflects no 1989, a mere five days before trial and almost four years reason to support that delay. Rather, it compels a conclu- liont lie date of the accident. sion that Leach and Nationwide wished to retaiu thcir Zinn ntade every effort to settle the case by provid- capital for as long as possible while causing Zinn and Itis ing Leach and Nationwide extensive information and counsel to incur niore expense and greater inconveu- documentation. Nunterous reports were provided from ience. Zinn's pbysicians, and [*29] the substance of tlteir opin- R.C. 1343.03(C) has two purposes. It is intended to ions concerning their diaytosis of Zinn's injuries, their relieve the courts of the burden of litigating cases tttat u'eatment of him, and his prognosis for recovery, did not should be settled by requirittg litigants to address their change through the course of the claim. Complete medi- settlement obligations realistically and in good faitlt. It is cal expense inforntation was provided. Support for pro- also intended to deny a recalcitrant litigant the benetits spective income loss was also provided. This inforniation he has realized in retaining funds lottg atter he knows hc sttbstantiated Zinn's four separate demands for settle- must ultimately pay thetn over, and to give his advcrsary nicnt. l.each and Nationwide ignored those dentands. who has acted in good faith contpensation in the forin of Nationwide failed to utilize the tools of discovery interest on the funds he would have realized had they available to it to leant the additional inforniation it cont- been paid out when the obligation was clear. plained that it lacked. No deposition was conducted of No party is required to settle a claim against his bet- Zinn or his wife. No depositions were taken of Zinn's ter judgment. However, R.C. 1343.03(C) penalizes a physicians. No consistent effort was made to use the re- party who fails to act in good faitlt to bring the ntatter to leases obtaitted from Zinn to get niedical or economic closure. We conclude that Leaclt [*32] and Nationwide data. These measures could have been used to narrow failed to ntake that good faith effort. Their conduct did and fucus the issues involved in Leach's potential liabil- not meet the obligations of cooperation and rational ity. Instead, Nationwide presented Zintt only witlt a evaluation of risks and potential liability set out in Kalain broad fornt, categorical demand for production of docu- v. Smith, supra. The record is clear that they purposely ments whiclt was so open-ended that it might never be delayed the proceedings tlirough unproductive discovery satisfied. Leacli and Nationwide made no additional ef- calculated to protect them from their settlement obliga- fort to obtain discovery, otlter than a late motion to com- tions. Their last-niinute offer to settle the case on infor- pel production of the documents. Yet, by that time Na- mation known to them for nionths or years lacked good tiomvide had the information many [*30] times over. In faith. Lastly, Lcach and Nationwide cannot point to an tnttlt, the demand for production was employed less as a objectively reasonable belief that they lacked liability, tool for discovery tltan as a means to forestall settlenient. and they could have had no such belief from the time of' The record also reflects a failure of Leach and Na- the summary judgment on liability in August, 1988. tionwide to address the progress of the litigation. Four We find that the trial court acted unreasonably in differcnt attorneys were assigned, in succession, to repre- denying Zinn's niotion for prejudgment interest. We hokt sent Leach. '1'wo of these were salaried employees of that the trial cottrt tlius abttsed its discretiott and erred Nationwide. 1'wo different adjusters were assigned. As thereby to the prejudice of Zinn. the utattcr moved front person to person, past dentands were renewed and evaluations repeated. Documents were III lost or ntisplaced. Contmunication broke down. No effort was made to reply to Zinn's demands for settlement, and Conclusion no responsibility was taken to move the matter to closure. ' The judgment of the trial court will be affirmed on all assignments of error of Appellant and Cross- * Leoch and his wife advised the court by mo- Appellant, except as to Cross-Appellant's assignment tion and affidavit filed March 27, 1989, that until concerning prejudgment interest, on which the judgment early 1989 they had no contact with any attorney of the trial court will be reversed. The niatter will be re- providcd them by their insurer, Nationwide, and manded to the trial [*33] court for entry of a judgntent that they were utmware of the summary judgment for prejudgment interest as provided by R.C. 1343.03(C)

APPX 67 Page 9 1990 Ohio App. LEXIS 5199, *

in favor of Appellee/Cross-Appellant Zinn against Ap- pellant Leach.

APPX 68