[Cite as State ex rel. Barnett v. Comm., 2014-Ohio-311.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
[State of Ohio ex rel.] :
Michelle Barnett,
:
Relator,
: No. 13AP-161
v.
: (REGULAR CALENDAR)
The Industrial Commission
of Ohio and Aspen Nursing :
Services, Inc.,
:
Respondents.
:
D E C I S I O N
Rendered on January 30, 2014
Cox, Koltak, and Gibson, LLP, and Peter J. Gibson, for
relator.
Michael DeWine, Attorney General, and Sandra E.
Pinkerton, for respondent The Industrial Commission of
Ohio.
IN MANDAMUS
ON OBJECTIONS TO THE MAGISTRATE'S DECISION
DORRIAN, J.
{¶ 1} Relator, Michelle Barnett, has filed this original action
requesting that this court issue a writ of mandamus ordering respondent
Industrial Commission of Ohio ("commission") to vacate its order
terminating temporary total disability ("TTD") compensation effective
August 1, 2012 based upon a finding that the industrial injury has reached
maximum medical improvement ("MMI"). Relator asks us to order the
commission to enter an order reinstating TTD compensation.
No. 13AP-161 2
{¶ 2} Pursuant to Civ.R. 53(D) and Loc.R. 13(M) of the Tenth
District Court of Appeals, this matter was referred to a magistrate who
issued a decision, including findings of fact and conclusions of law, which is
appended hereto. The magistrate recommends that this court grant the
request for a writ of mandamus. The commission objects.
{¶ 3} The commission presents two objections to the magistrate's
decisions: first, that the magistrate erred in finding that the commission
relied "exclusively" on Garcia's report; and second, that, by making this
mistake, the magistrate incorrectly found Dr. Garcia's report was
"premature." Generally, relator argues that the magistrate failed to
acknowledge that the staff hearing officer ("SHO") considered Dr. Garcia's
report in light of the subsequent treatment records that showed no
functional improvement, and, in so doing, the magistrate failed to consider
whether the evidence taken as a whole was some evidence on which the
commission could base its decision. The commission argues its order was
based on some evidence as the SHO considered not only Dr. Garcia's report
but also subsequent treatment reports. We will discuss the two objections
together.
{¶ 4} The magistrate determined that Dr. Garcia's report does not
provide some evidence upon which the commission could rely to support its
finding that relator had reached MMI. Relying on State ex rel Sellards v.
Indus. Comm., 108 Ohio St.3d 306, 2006-Ohio-1058, the magistrate
reasoned that Dr. Garcia's April 27, 2012 report was premature, given the
commission granted Dr. Altic's C-9 request for a course of treatment
approximately one month after Dr. Garcia's report was issued.
{¶ 5} The commission argues that the magistrate's reliance on
Sellards is misplaced and notes that, in Sellards, the commission's approval
of treatment was contemporaneous with its termination of TTD. The
commission further argues the fact that Dr. Garcia was aware of the
proposed treatment at the time he opined that MMI had been reached,
coupled with the fact that the SHO considered subsequent treatment reports
No. 13AP-161 3
and concluded there was no functional improvement, distinguishes this case
from Sellards.
{¶ 6} We find the magistrate did not err. First, the SHO did not
state that it relied on the subsequent treatment reports in making it's
determination that TTD should be terminated. Second, even if we were to
construe the SHO's reference to the subsequent treatment reports to be a
statement of reliance, the reports themselves do not contain a medical
opinion that MMI had been reached. In other words, the SHO assessed the
reports and offered his own opinion that MMI had been reached even with
the subsequent treatments, upon which he apparently subsequently relied.
{¶ 7} The SHO stated in his order that he had "reviewed the
treatment notes on file regarding the approved physical medicine and trigger
point injections the Injured Worker underwent and finds that the notes do
not adequately support the contention that either course of treatment
resulted in objective evidence of functional improvement in the allowed
conditions." He thus concluded "the Staff Hearing Officer finds that Dr.
Garcia's report remains probative on the maximum medical improvement
issue." (Sept. 27, 2012 SHO order, 2.) In reviewing the subsequent
treatment reports, the SHO apparently inferred that the treatment was not
working and that relator had indeed reached MMI. Neither the commission
nor this court has medical expertise. State ex rel. Cleveland Browns Football
Co., L.L.C. v. Indus. Comm., 10th Dist. No. 10AP-564, 2011-Ohio-5656,
¶ 51, citing State ex rel. Yellow Freight Sys., Inc. v. Indus. Comm., 81 Ohio
St.3d 56 (1998). The commission, in effect, invites this court to read the
subsequent treatment reports as supporting an opinion that the industrial
injury is at MMI, even though the reports contain no such opinion. This
court must decline the invitation. Furthermore, we disagree that Dr. Garcia's
opinion that relator had reached MMI was premised on his assessment of
subsequent treatment. Obviously, Dr. Garcia did not have these records
available to him at the time of his April 27, 2012 opinion. Furthermore,
although he was aware of the proposed treatment, he was under the
No. 13AP-161 4
impression that such treatment had been denied. Additionally, Dr. Garcia
was not asked to provide an addendum after the treatment was commenced.
{¶ 8} "The commission is free to accept or reject medical opinions
of record in determining disability. However, it cannot fashion its own
medical opinion from the findings contained in the medical reports such as
might be done by a non-examining physician who is asked by the
commission to review the medical evidence of record." State ex rel.
Valentine v. Indus. Comm., 10th Dist. No. 02AP-579, 2003-Ohio-1784,
¶ 105. See State ex rel. Wallace v. Indus. Comm, 57 Ohio St.2d 55, 59
(1979) (The non-examining physician is required to expressly accept all the
findings of the examining physician but not the opinion drawn therefrom.).
State ex rel. Blue v. Indus. Comm., 79 Ohio St.3d 466 (1997). Here, the
SHO reviewed the subsequent treatment reports and fashioned his own
medical opinion. The fashioning of such an opinion, to bolster the
premature opinion of Dr. Garcia, was not proper. Therefore, we overrule the
commission's objections.
{¶ 9} Upon review of the magistrate's decision, an independent
review of the record, and due consideration of the commission's objections,
we find the magistrate has properly determined the pertinent facts and
applied the appropriate law. We therefore overrule the commission's
objections to the magistrate's decision and adopt the magistrate's decision as
our own, including the findings of fact and conclusions of law contained
therein.
{¶ 10} Accordingly, the requested writ of mandamus is hereby
granted, and the commission is ordered to vacate the September 27, 2012
order of its SHO that terminated TTD compensation, and to enter an order
reinstating TTD compensation.
Objections overruled; writ granted.
SADLER, P.J., and McCORMAC, J., concur.
McCORMAC, J., retired, of the Tenth Appellate District,
assigned to active duty under the authority of the Ohio
Constitution, Article IV, Section 6(C).
No. 13AP-161 5
_____________
No. 13AP-161 6
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
[State of Ohio ex rel.] :
Michelle Barnett,
:
Relator,
: No. 13AP-161
v.
: (REGULAR CALENDAR)
The Industrial Commission
of Ohio and Aspen Nursing :
Services, Inc.,
:
Respondents.
:
MAGISTRATE'S DECISION
Rendered on August 28, 2013
Cox, Koltak, and Gibson, LLP, and Peter J. Gibson, for
relator.
Michael DeWine, Attorney General, and Sandra E.
Pinkerton, for respondent The Industrial Commission of
Ohio.
IN MANDAMUS
{¶ 11} In this original action, relator, Michelle Barnett, requests a
writ of mandamus ordering respondent Industrial Commission of Ohio
("commission") to vacate its order terminating temporary total disability
("TTD") compensation effective August 1, 2012 based upon a finding that the
industrial injury has reached maximum medical improvement ("MMI"), and
to enter an order reinstating TTD compensation.
No. 13AP-161 7
Findings of Fact:
{¶ 12} 1. On July 19, 2010, relator injured her neck, back, shoulders
and arms while employed as a "caregiver" for respondent Aspen Nursing
Services, Inc., a state-fund employer. The injury occurred when relator was
lifting a client/resident from a bathtub.
{¶ 13} 2. The industrial claim (No. 10-339188) is allowed for:
Cervical sprain/strain; lumbar sprain/strain; thoracic
sprain/strain; bilateral shoulder sprains; cervical disc
protrusion at C4-5, C5-6, C6-7, and C7-T1; left cervical
radiculopathy.
{¶ 14} 3. The Ohio Bureau of Workers' Compensation ("bureau")
began payments of TTD compensation based upon C-84 reports from
treating physician Stephen Altic, D.O.
{¶ 15} 4. The record contains a C-84 dated March 27, 2012 on which
Dr. Altic certified TTD from March 22, 2012 to an estimated return-to-work
date of June 22, 2012 based upon a March 22, 2012 examination. On the C-
84, Dr. Altic wrote: "See Narrative from 3/22/12."
{¶ 16} 5. On March 27, 2012, Dr. Altic completed two C-9 requests
for medical treatment. Between the two C-9s, Dr. Altic requested
authorization for the following:
[Three] Pain management consultation.
[Four] Course of physical medicine to the cervical and
lumbar spine three times weekly times six weeks employing
ultrasound, massage, hot packs, ice packs, electrical
stimulation, and therapeutic exercises for range of motion
and strengthening, as well as home exercise instruction.
***
[Five] Concomitant with physical medicine treatments,
series of trigger point injections to the cervical spine three
times weekly times six weeks employing [L]idocaine or
Marcaine and sterile saline.
[Six] Consultation with pain management specialist.
[Seven] Consultation with registered and licensed dietician
Gregory Avellana at Grandview Family Practice.
No. 13AP-161 8
{¶ 17} 6. On March 29, 2012, the managed care organization
("MCO") denied all of Dr. Altic's requests except "pain management consult
x 1 cervical spine only."
{¶ 18} 7. On April 20, 2012, the bureau mailed an order denying the
March 27, 2012 C-9s of Dr. Altic.
{¶ 19} 8. Relator administratively appealed the April 20, 2012
bureau order.
{¶ 20} 9. Following a May 31, 2012 hearing, a district hearing officer
("DHO") issued an order that vacates the bureau's April 20, 2012 order and
grants the March 27, 2012 requests of Dr. Altic. The DHO's order explains:
The District Hearing officer notes that the pain management
consultation was authorized by the managed care
organization for the cervical spine. The disputed issues are
the physical medicine to the cervical and lumbar spines with
concomitant trigger point injections to the cervical spine and
a consultation with a dietician.
The District Hearing Officer notes that the Injured Worker
was authorized to undergo cervical fusion surgery with Dr.
White and the Injured Worker has deferred the surgery to
lose weight to increase her chances of a successful surgery.
Dr. White agrees with this plan of action. The medical
records on file do document an over 50 pound weight gain
since the date of injury. The urgent care record from
7/20/2010 noted her weight at 285 pounds and the most
recent note from Dr. Altic indicates 343 pounds.
The District Hearing Officer orders that the following
treatment be authorized and paid within Bureau of Workers'
Compensation rules and regulations: physical medicine to
the cervical spine with concomitant trigger point injections
three times a week for six weeks; physical medicine to the
lumbar spine three times a week for six weeks; and a
consultation with a dietician. This order is based on the
3/26/2012 report from Dr. Altic and the 2/3/2012 report
from Dr. White. The District Hearing Officer finds that this
evidence sufficiently supports that this treatment is
medically reasonable and necessary treatment for the
allowed conditions.
No. 13AP-161 9
{¶ 21} 10. The DHO's order of May 31, 2012 was not
administratively appealed. Thus, the order is a final commission order.
{¶ 22} 11. Earlier, on April 26, 2012, at the bureau's request, relator
was examined by David A. Garcia, D.O. In his five-page narrative report
dated April 27, 2012, under the heading "History of Present Illness," Dr.
Garcia states:
She followed up with Dr. White on February 3, 2012, who
stated she was approved for a cervical fusion at C5-C6 and
C6-C7, but he wanted to hold off on surgery at this time as
she had increased her weight which would put her at risk for
nonunion. He recommended a referral to Pain Management
for at least a trial of cervical epidural steroid injections. She
followed up with her physician of record, Dr. Altic, on
March 26, 2012, who recommended a pain management
consultation PT, trigger point injections and following up
with a dietitian to help her lose weight. She stated the pain
management consultation, PT, trigger point injections and a
followup for a consultation with a dietitian were all denied.
She stated on the flip side, she could have continuation of
her pain medications. There are no other treatment therapies
or treatment regimens being performed.
{¶ 23} Dr. Garcia's report concludes with his answers to six questions
posed by the bureau:
Question 1: In your medical opinion has the injured worker
reached a treatment plateau that is static or well stabilized,
at which no fundamental, functional or physiological change
can be expected within reasonable medical probability in
spite of continuing medical or rehabilitation procedures
(maximum medical improvement)? Please explain.
Answer: The injured worker had been told to hold off on
surgical intervention until she can lose weight. There are no
other interventions planned at this time. The most recent C9
for PT, trigger point injections, pain management
consultation was also denied; therefore for the current
treatment regimen, she has reached a treatment plateau.
When she does reach her weight goal, MMI can be re-
evaluated for her to move forward with surgery, but with the
current treatment regimen, she has reached MMI.
No. 13AP-161 10
Question 2: Can the injured worker return to his/her former
position of employment? If yes, are there any restrictions or
modifications?
Answer: In my medical opinion, the injured worker cannot
return to her former position of employment as a caregiver
due to her conditions.
Question 3: Please provide a summary of any functional
limitations solely due to the allowed physical condition(s) in
this claim(s). In other words, please indicate the type of work
the injured worker can perform and the supportive rationale
for this opinion.
Answer: The functional limitations are outlined on the
attached DEP Physician's Report of Work Ability. The
injured work is able to lift up to 10 pounds occasionally but
otherwise no heavier lifting. She can sit continuously. She
can bend, twist, turn, reach below the knees, push, pull,
stand and walk frequently. She can squat, kneel and lift
above the shoulders occasionally.
Question 4: has the injury/disease reached maximum
medical improvement? If not, are there any
recommendations for vocational rehabilitation and when
should a re-examination be considered?
Answer: Yes. The injured worker has reached MMI with the
current treatment regimen. Again, MMI can be reconsidered
if she has lost the weight and can proceed with surgery.
Question 5: Is the current treatment necessary and
appropriate for the medical condition(s)?
Answer: The current treatment of muscle relaxants and anti-
inflammatories is necessary and appropriate.
Question 6: What are the recommendations for any
proposed plan of treatment including the expected length of
treatment and results?
Answer: I recommend continuation of weight loss to move
forward with the planned surgical intervention.
The above analysis is based upon the available information
at this time including the history given by the injured
No. 13AP-161 11
worker, the medical records and tests provided and the
physical findings.
{¶ 24} 12. On June 20, 2012, nearly two months after Dr. Garica
issued his report, the bureau moved to terminate TTD compensation based
upon Dr. Garcia's April 26, 2010 report. In that regard, the bureau issued a
referral notice to relator:
The Ohio Bureau of Workers' Compensation (BWC) is
referring this claim to the Industrial Commission of Ohio
(IC) for consideration of the administrator's request that the
temporary total compensation be terminated due to the
injured worker reaching maximum medical improvement.
This recommendation is based on:
4/27/2012 IME by Dr. Garcia that finds that the IW has
reached a level of MMI with her physical conditions. The IW
has been allowed for surgery, which is on hold until she can
lose weight, to increase her chance of a successful recovery.
He also find that she can return to modified duty work.
The administrator asks that this IW be found at MMI for her
work related conditions.
{¶ 25} 14. Following an August 1, 2012 hearing, a DHO issued an
order granting the bureau's June 20, 2012 motion. The DHO's order
explains:
The Bureau of Workers' Compensation's request to
terminate payment of temporary total disability
compensation in this claim is granted. The District Hearing
Officer finds that the Injured Worker has reached maximum
medical improvement (as defined in Ohio Administrative
Code Section 4121-3-32) for the allowed conditions in this
claim. Ongoing temporary total disability compensation is
hereby ordered to be paid only through the date of today's
hearing. Any temporary total disability compensation paid
after the date of today's hearing is hereby ordered to be
recouped pursuant to the non-fraud provisions of Ohio
Revised Code Section 4123.511(K).
This order is based on Dr. Garcia's 04/27/2012 report. The
District Hearing Officer also notes that, due to the Injured
Worker's weight, the Injured Worker's surgery has been
No. 13AP-161 12
postponed (to an undetermined future date, if not
indefinitely) and the Injured Worker at this time is simply
undergoing conservative treatment.
{¶ 26} 14. Relator administratively appealed the DHO's order of
August 1, 2012.
{¶ 27} 15. Following a September 27, 2012 hearing, a staff hearing
officer ("SHO") issued an order stating that the DHO's order is "modified."
The SHO's order explains:
It is the order of the Staff Hearing Officer that the Bureau of
Workers' Compensation's Motion filed 06/20/2012 is
granted to the extent of this order.
The Staff Hearing Officer affirms the finding that the allowed
conditions of the claim have reached maximum medical
improvement, as defined in Ohio Adm. Code 4121-3-32(A)
(1), based on the report from Dr. Garcia dated 04/02/2012
[sic] persuasively so indicating. As such, the Staff Hearing
Officer finds that in his order dated 08/01/2012, the District
Hearing Officer properly terminated the payment of
temporary total disability compensation effective the date of
his hearing, based on the maximum medical improvement
finding and the decision in State ex rel. Russell v. Indus.
Comm., 83 Ohio St.3d 516, 696 N.E.2d 1069 (1998).
It is true that subsequent to the date of Dr. Garcia's
examination of the Injured Worker, requests for a course of
physical medicine, trigger point injections, and a
consultation with a dietician have been approved, the latter
with the purpose of assisting the Injured Worker in losing
weight prior to her recommended surgery. The Injured
Worker testified that as of today's date, the consultation with
a dietician has not yet taken place. The Staff Hearing Officer
reviewed the treatment notes on file regarding the approved
physical medicine and trigger point injections the Injured
Worker underwent and finds that the notes do not
adequately support the contention that either course of
treatment resulted in objective evidence of functional
improvement in the allowed conditions. As such, the Staff
Hearing Officer finds that Dr. Garcia's report remains
probative on the maximum medical improvement issue.
No. 13AP-161 13
{¶ 28} 16. On October 25, 2012, another SHO mailed an order
refusing relator's administrative appeal from the SHO's order of September
27, 2012.
{¶ 29} 17. On February 28, 2013, relator, Michelle Barnett, filed this
mandamus action.
Conclusions of Law:
{¶ 30} The issue is whether the April 27, 2012 report of Dr. Garcia,
upon which the commission exclusively relied, provides some evidence to
support its finding that the industrial injury is at MMI.
{¶ 31} Finding that Dr. Garcia's report does not provide some
evidence upon which the commission can rely to support its finding that the
industrial injury is at MMI, it is the magistrate's decision that this court issue
a writ of mandamus, as more fully explained below.
{¶ 32} Here, the parties argue State ex rel. Sellards v. Indus. Comm.,
108 Ohio St.3d 306, 2006-Ohio-1058. Relator argues that Sellards supports
the issuance of a writ of mandamus. The commission argues to the contrary.
{¶ 33} In Sellards, the commission relied upon the report of
psychiatrist Dr. Allen B. Levy to support its finding that the psychiatric
condition of William E. Sellards, Jr. ("Sellards") had reached MMI. The
Sellards court found that Dr. Levy's report was premature and thus did not
provide some evidence supporting the commission's decision to terminate
TTD compensation on MMI grounds.
{¶ 34} In Sellards, treating psychiatrist, J.T. Spare, submitted a C-9
treatment plan on October 17, 2002. The commission approved the plan on
October 22, 2002.
{¶ 35} Coincidentally, also on October 22, 2002, Sellards was
examined by Dr. Levy. After the examination and a thorough review of the
medical records (which did not include Dr. Spare's treatment plan), Dr. Levy
concluded that the psychiatric condition had reached MMI.
{¶ 36} Also, Dr. Spare wrote on November 26, 2002 that his
treatment of Sellards had been negatively impacted by Sellards' inability to
No. 13AP-161 14
get his prescriptions filled at the pharmacy he goes to. Later, on December
24, 2002, the bureau admitted that an error had occurred regarding
prescription payment and, as of that date, had been corrected.
{¶ 37} The Sellards court held that Dr. Levy's MMI opinion "was
premature based on the commission's contemporaneous approval of Dr.
Spare's treatment program." Sellards at ¶ 20.
{¶ 38} Turning to the instant case, as of the date of Dr. Garcia's April
27, 2012 report, the MCO had denied the course of treatment set forth in Dr.
Altic's C-9s with the exception of a "[p]ain management consult x 1 cervical
spine only." Also, as of the date of Dr. Garcia's report, the administrator had
issued an order on April 20, 2012 that upheld the MCO denials. In his
report, Dr. Garcia acknowledges the status of Dr. Altic's C-9s by stating that
relator stated that the C-9 requests "were all denied." (Actually, Dr. Garcia's
acknowledgment of the status of Dr. Altic's C-9s was incorrect, in part,
because the MCO had authorized a pain management consult for the cervical
spine only.)
{¶ 39} About one month after Dr. Garcia issued his report, the status
of Dr. Altic's recommended course of treatment dramatically changed
because the DHO's order of May 31, 2012 granted Dr. Altic's C-9 request for
a course of treatment.
{¶ 40} Despite that Dr. Garcia believed at the time of his report that
the C-9 requests had been denied and that no course of treatment was in
place, the commission relied upon Dr. Garcia's report to support an MMI
finding and termination of TTD compensation.
{¶ 41} Given this scenario, the issue here is whether, as a matter of
law, Dr. Garcia's April 27, 2012 report is premature and thus not probative
on the issue of MMI. If Dr. Garcia's report is premature, it cannot constitute
some evidence to support the commission's determination of TTD
compensation.
No. 13AP-161 15
{¶ 42} In his April 27, 2012 report, Dr. Garcia states that, other than
the continuation of her pain medications, "[t]here are no other treatment
therapies or treatment regimens being performed."
{¶ 43} In his April 27, 2012 report, in answer to question one, Dr.
Garcia notes that relator has been told to delay surgery until she loses
weight. Based on his understanding that Dr. Altic's treatment regimen has
been denied, Dr. Garcia opines: "but with the current treatment regimen,
she has reached MMI."
{¶ 44} In his April 27, 2012 report, in answer to question four, Dr.
Garcia opines: "[t]he injured worker has reached MMI with the current
treatment regimen."
{¶ 45} In his April 27, 2012 report, Dr. Garcia repeatedly makes clear
that his MMI opinion is premised, at least in part, upon the absence of an
approved course of treatment and particularly the denial of Dr. Altic's
proposed treatment plan.
{¶ 46} Significantly, Dr. Altic's March 27, 2012 C-9 treatment plan
predates the bureau's request that relator be examined by Dr. Garcia. It
appears that Dr. Garcia's examination of relator was prompted by Dr. Altic's
C-9 request. Had the examination been delayed about one month until Dr.
Altic's C-9 request had been finally resolved, Dr. Garcia would presumably
have had the correct information regarding the final status of Dr. Altic's
treatment plan. But the bureau apparently chose to pursue Dr. Garcia's
examination of relator prior to a final administrative decision on Dr. Altic's
C-9 request. Moreover, the bureau did not request an addendum from Dr.
Garcia following the May 31, 2012 DHO's order.
{¶ 47} In Sellards, unaware the commission had approved Dr.
Spare's treatment plan as of the date of his examination, Dr. Levy's
conclusion that the psychiatric condition had reached MMI was held to be
premature. Here, while Dr. Garcia was aware that Dr. Altic had requested
approval of a treatment plan, his belief that the plan had been denied
ultimately proved to be wrong.
No. 13AP-161 16
{¶ 48} Based upon the above analysis, the magistrate finds that
Sellards supports the conclusion that Dr. Garcia's report was premature and
thus fails to provide some evidence upon which the commission can rely.
{¶ 49} Accordingly, it is the magistrate's decision that this court issue
a writ of mandamus ordering the commission to vacate the September 27,
2012 order of its SHO that terminated TTD compensation, and to enter an
order reinstating TTD compensation.
/S/ MAGISTRATE
KENNETH W. MACKE
NOTICE TO THE PARTIES
Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign
as error on appeal the court's adoption of any factual finding
or legal conclusion, whether or not specifically designated as
a finding of fact or conclusion of law under Civ.R.
53(D)(3)(a)(ii), unless the party timely and specifically
objects to that factual finding or legal conclusion as required
by Civ.R. 53(D)(3)(b).
State ex rel. Barnett v. Comm.
Combined Opinion