State ex rel. Cafaro Mgt. Co. v. Indus. Comm.

[Cite as State ex rel. Cafaro Mgt. Co. v. Indus. Comm., 2013-Ohio-5104.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio ex rel. :
Cafaro Management Company,
:
Relator,
: No. 12AP-638
v.
: (REGULAR CALENDAR)
Industrial Commission of Ohio
and Deborah Lovas, :

Respondents. :

D E C I S I O N

Rendered on November 19, 2013

Michael J. Wright, for relator.

Michael DeWine, Attorney General, and Cheryl J. Nester, for
respondent Industrial Commission of Ohio.

Scott A. Rosenthal, for respondent Deborah Lovas.

IN MANDAMUS
ON OBJECTIONS TO THE MAGISTRATE'S DECISION
CONNOR, J.
{¶ 1} Relator, Cafaro Management Company, brings this original action seeking
a writ of mandamus ordering respondent, Industrial Commission of Ohio
("commission"), to vacate its order apportioning 25 percent of claimant's permanent total
disability ("PTD") award to claim No. XX-XXXXXXX, and to enter an amended order
allocating the entire award to claim No. 90-1125.
{¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of
Appeals, we referred this matter to a magistrate who rendered a decision and
No. 12AP-638 2

recommendation that includes findings of fact and conclusions of law, which is appended
hereto. The magistrate concluded that the commission abused its discretion by allocating
25 percent of claimant's award to claim No. XX-XXXXXXX, "without an explanation that
this court can review in mandamus." (Magistrate's Decision, 17.) Accordingly, the
magistrate recommended that we issue a writ of mandamus "ordering the commission to
vacate that portion of its SHO's order of April 11, 2012 that allocates the award, and to
enter a new order in a manner consistent with this magistrate's decision that properly
allocates the award between the two industrial claims." (Magistrate's Decision, 17.)
{¶ 3} Both parties have filed objections to the magistrate's decision and the
matter is now before us for our independent review.
{¶ 4} In its objection, relator argues that the magistrate erred in concluding that
the report issued by M.P. Patel, M.D. provided "some evidence" upon which the
commission could rely in support of its decision to allocate 25 percent of claimant's PTD
award to claim No. XX-XXXXXXX.
{¶ 5} Our "review of the commission's orders in mandamus is governed by the
'some evidence' standard." State ex rel. Simms v. Ford Motor Co., 10th Dist. No. 09AP-
165, 2010-Ohio-671, ¶ 4, citing State ex rel. Rouch v. Eagle Tool & Machine Co., 26 Ohio
St.3d 197 (1986). If a medical report is either equivocal or internally inconsistent it is not
"some evidence." State ex rel. George v. Indus. Comm., 130 Ohio St.3d 405, 407, 2011-
Ohio-6036, ¶ 11, citing State ex rel. Eberhardt v. Flxible Corp., 70 Ohio St.3d 649 (1994).
Equivocation "occurs 'when a doctor repudiates an earlier opinion, renders contradictory
or uncertain opinions, or fails to clarify an ambiguous statement.' " George at ¶ 15,
quoting Eberhardt at 657.
{¶ 6} Relator argues that Dr. Patel's medical report is equivocal inasmuch as he
considered both healed conditions and disallowed conditions in formulating his opinion
on PTD. We disagree.
{¶ 7} There is no question that Dr. Patel discussed a number of medical
conditions in his report that were either completely healed or non-allowed. However, as
the magistrate noted, such discussion took place in the context of Dr. Patel's review of
claimant's medical history and in relating his findings following physical examination of
claimant. It is also true that some of the healed and non-allowed conditions are similar in
No. 12AP-638 3

nature to the allowed conditions in the 2008 claim. Nevertheless, in rendering his
"Opinion" regarding claimant's PTD application, Dr. Patel referenced only those
conditions specifically allowed in the two claims. (Magistrate's Decision, 5.).
{¶ 8} Relator argues that Dr. Patel employed a "shotgun approach" in
determining claimant's disability, and that he "lumped together" the allowed conditions
without differentiating minor and resolved conditions from the more significant
conditions. However, the magistrate carefully addressed relator's arguments, and we
agree with the magistrate's analysis.
{¶ 9} To the extent that relator argues that Dr. Patel's report is critically flawed
because it does not comport with the requirements of Ohio Adm.Code 4121-3-34, the
magistrate specifically found that such guidelines expressly apply only to independent
medical examiners. The language used in the Ohio Administrative Code supports the
magistrate's finding and, for the reasons set forth by the magistrate, we reject relator's
argument. Furthermore, to the extent that relator argues that Dr. Patel's report must be
drafted in accordance with American Medical Association guidelines, relator has
presented no legal support for such an argument.
{¶ 10} In short, upon review of Dr. Patel's report and in consideration of relator's
arguments, we do not agree that the report is equivocal or inconsistent. Thus, the
magistrate did not err in concluding that Dr. Patel's report provided some evidence in
support of the commission's ruling. Accordingly, relator's objection is overruled.
{¶ 11} Respondent objects to the magistrate's conclusion "that the commission
abused its discretion by allocating 25 percent of the award to the 2008 claim without an
explanation that this court can review in mandamus." (Magistrate's Decision, 17.) The
commission argues that it need not "specifically justify the exact figure allocated to each
claim." (Respondent's Objection, 2.) We agree.
{¶ 12} The commission is the exclusive evaluator of disability. See State ex rel.
Kelly Servs., Inc. v. Indus. Comm, 10th Dist. No. 05AP-1192, 2006-Ohio-5868, ¶ 3, citing
State ex rel. Kirkendall v. Indus. Comm., 87 Ohio St.3d 182, 183 (1999). Indeed, this
court has held that the commission need not extrapolate from the expert's allocation of
whole person impairment in order to determine the percentage of a PTD award to allocate
to each employer. Kelly Servs.
No. 12AP-638 4

{¶ 13} The magistrate acknowledged that "it was not necessarily improper for the
commission to point out in its order that it was the injury in the 2008 claim that removed
claimant from the workforce * * * [and that] * * * some percentage allocation to the 2008
claim would be proper." (Magistrate's Decision, 17.) However, the magistrate, relying on
State ex rel. Yellow Freight Sys., Inc. v. Indus. Comm., 71 Ohio St.3d 139 (1994),
concluded that the commission had a duty to provide a more detailed explanation for the
25 percent allocation. We disagree.
{¶ 14} In Yellow Freight, the commission elected to allocate claimant's entire PTD
award to one claim even though the medical evidence expressly relied upon by the
commission contradicted such an allocation. Id. at 143. Under such circumstances, the
court returned the cause to the commission for "further consideration and an amended
order." Id.
{¶ 15} Here, the commission explained that claimant returned to work following
the 1990 injuries but that the industrial injury in 2008 permanently removed claimant
from the workforce. Thus, unlike the Yellow Freight case, the allocation of the PTD award
among the two claims in this case is completely consistent with the evidence expressly
relied upon by the commission. Under these circumstances, the commission was under
no obligation to provide further explanation. See Kelly Servs. at ¶ 6 (although claimant
was able to return to the workforce after the first industrial injury, it was not an abuse of
discretion for the commission to apportion one-half of claimant's PTD award to a
subsequent claim, where the second injury permanently removed claimant from the
workforce). Accordingly, respondent's objection is sustained.
{¶ 16} Following independent review, pursuant to Civ.R. 53, we find the magistrate
has properly determined the pertinent facts and we adopt them as our own. However, we
disagree with the magistrate's conclusion of law as noted herein. Accordingly, for the
reasons set forth in this decision, we hereby overrule relator's objection, sustain
respondent's objection, and deny the requested writ of mandamus.

Writ of mandamus denied.

TYACK and DORRIAN, JJ., concur.
_________________
No. 12AP-638 5

A P P E N D I X

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio ex rel. :
Cafaro Management Company,
:
Relator,
: No. 12AP-638
v.
: (REGULAR CALENDAR)
Industrial Commission of Ohio
and Deborah Lovas, :

Respondents. :

MAGISTRATE'S DECISION

Rendered on June 17, 2013

Michael J. Wright, for relator.

Michael DeWine, Attorney General, and Cheryl J. Nester, for
respondent Industrial Commission of Ohio.

Scott A. Rosenthal, for respondent Deborah Lovas.

IN MANDAMUS

{¶ 17} In this original action, relator, Cafaro Management Company, requests a
writ of mandamus ordering respondent Industrial Commission of Ohio ("commission") to
vacate that portion of its order that allocates 25 percent of an award of permanent total
No. 12AP-638 6

disability ("PTD") compensation to relator in claim No. 08-852146, and to enter an
amended order that allocates the entire award to another employer in claim No. 90-1125.
Findings of Fact:
{¶ 18} 1. On January 27, 1990, respondent, Deborah Lovas ("claimant"), sustained
an industrial injury while employed as a security detective for Joseph Horne Co., Inc., a
state-fund employer. On that date, claimant fell from a ladder. The industrial claim (No.
90-1125) ("the 1990 claim") is allowed for:
Cervical, dorsal and lumbar myositis; tendonitis right
shoulder and arm; bulging disc L5-S1; lumbar and cervical
radiculopathy; post-traumatic headache syndrome; rotator
cuff strain, right; trapezial myositis; depressive disorder;
dysthymic disorder.

{¶ 19} 2. On August 25, 2008, claimant sustained an industrial injury while
employed as an administrative assistant for relator. On that date, claimant slipped on
some papers strewn on the floor and she fell. The industrial claim (No. 08-852146) ("the
2008 claim") is allowed for:
Contusion of buttock; contusion of back; sprain of neck;
sprain thoracic region; sprain lumbar region; sprain of left
knee and leg; substantial aggravation of pre-existing
chondromalacia patella II, left knee; contusion left elbow;
contusion left hip.

{¶ 20} 3. According to the complaint filed in this action, claimant was employed
with relator from approximately June 4, 2007 until August 25, 2008.
{¶ 21} 4. Temporary total disability ("TTD") compensation was paid to claimant in
the 2008 claim commencing April 30, 2009.
{¶ 22} 5. On September 8, 2010, the Ohio Bureau of Workers' Compensation
("bureau") moved to terminate TTD compensation in the 2008 claim.
{¶ 23} 6. Following an October 20, 2010 hearing, a district hearing officer
("DHO") issued an order terminating TTD compensation in the 2008 claim on grounds
that the allowed conditions of the claim have reached maximum medical improvement
("MMI"). TTD compensation was terminated effective the date of the hearing.
{¶ 24} 7. On May 25, 2011, at claimant's own request, she was examined by M.P.
Patel, M.D. In his four-page narrative report, Dr. Patel states:
No. 12AP-638 7

History and Clinical Course
During course of her employment with Horne's Department
Store as a store detective, on January 27, 1990, Ms. Lovas fell
from a ladder approximately 16 feet, landing on her feet. She
tried to hang from the ladder to keep from falling and
sustained injury to shoulder. Injuries to other body parts
were as a result of the impact when she landed.

After initial examination at Emergency Room, Ms. Lovas
began treating with Dr. Stanich. Diagnostic studies included
X-rays, MRI cervical spine. She was treated with analgesics
and therapy modalities.

Ms. Lovas experienced acute exacerbations. During month of
March 1990, she was hospitalized for four days with severe
pain.

Ms. Lovas' symptoms persisted. During month of May 1990,
her additional diagnostic studies included EMG/NCV both
upper extremities, MRI lumbar spine, C.T. Scan head.

Ms. Lovas continued with neurological follow-up. She
underwent C.T. Scan head in May 1991. She underwent
repeat C.T. Scan head in April 1992. Ms. Lovas continue[d]
with treatment which included analgesics, anti-inflammatory
medications and Chiropractic treatment.

During course of her employment with Cafaro Management
Company, Inc., Ms. Lovas slipped and fell on some papers
that were scattered on the floor. She was transferred by
ambulance to St. Elizabeth Health Center. Diagnostic studies
included X-rays cervical spine, lumbar spine, left knee.

Ms. Lovas was treated with analgesics and therapy
modalities. For increasing symptoms knee, she underwent
MRI left knee on October 17, 2008.

Ms. Lovas was referred to Dr. Fumich. On December 18,
2009, she underwent surgery for diagnostic and operative
arthroscopy of the left knee with patellar chondroplasty,
synovectomy, patellofemoral joint.

Ms. Lovas was further treated with Dr. Morley with
medications and therapy modalities.

Present Complaints
No. 12AP-638 8

Ms. Lovas experienced recurring headaches which were
frequent, throbbing and encircling entire head. She
complained of dizzy spells with headaches.

She reported that over a period of time, neck pain was
progressively worse. Pain radiated to both arms. She
complained of numbness and tingling sensation in both
hands and fingers. She complained of weakness in both
arms. She had episodes of dropping things while lifting.

Ms. Lovas reported constant pain right shoulder. Pain
continued to extend to neck and downward to the right arm.
She complained of recurring pain elbow. She continued to
have difficulty with overhead work. Activities such as
pushing, pulling or lifting caused an increase in pain.

She described constant pain and stiffness mid-low back. Pain
was sharp, burning and extending to both legs. She had
episodes of numbness lateral aspect of both thighs and legs.
She complained of recurring pain hip and knee joints. She
experienced frequent swelling knee joint. She complained of
weakness both legs and at times, legs gave out while walking.
She had difficulty walking or standing for an extended period
of time. Climbing or descending stairs caused increase in
pain.

Physical Examination

Examination revealed a 56-year-old female in pain and
discomfort and walking with an antalgic gait. Height 5'4",
Weight 137 lbs. BP 121/81 mmHg., Pulse 91/m.r.

Examination of the cervical spine revealed tenderness in the
midline over the spinous processes and in the adjacent
paraspinous muscles. There was also muscular tightness in
the paracervical region, most evident with the neck
hyperflexion. Mobility was restricted with flexion 45 degrees
and extension 55 degrees. Right and left lateral flexion 25
degrees and right and left rotation 55 degrees. Deep tendon
reflexes were 1 + both upper extremities.

Examination of the right shoulder joint revealed tenderness
over anterior aspect, extending from bicipital tendon to
acromioclavicular joint. Restriction in range of motion
shoulder joint with flexion 150 degrees and extension 30
degrees. Abduction 130 degrees and adduction 30 degrees.
No. 12AP-638 9

Internal rotation 60 degrees and external rotation 60
degrees. Examination of the left elbow joint revealed mild
tenderness. Mobility was normal in range with pain at
extreme range of motion.

Examination of thoracic spine revealed tenderness extending
from T4-T8 paraspinal musculature regions. Protraction,
retraction and elevation of scapuli were painful. Mobility
thoracic spine was restricted with flexion 30 degrees, right
and left rotation 20 degrees.

Examination of lumbar spine revealed lumbosacral spine
tenderness over lumbar spinous processes and over both
paraspinous muscular masses. Spasm of paralumbar muscles
was noted. Range of motion was restricted with flexion 55
degrees and extension 25 degrees. Right and left lateral
flexion 25 degrees. Straight leg raising test produced low
back pain and radiating pain to legs at 55 degrees. Achilles
and Patellar reflexes were 1 + bilaterally.

Examination of the left knee joint revealed scars secondary
to previous arthroscopic surgery. Tenderness was noted
circumferentially over the left knee joint. Tenderness was
more severe over the lateral and medial joint lines. There
was limited flexion and extension with flexion 70 degrees
and extension lag 20 degrees. Both were associated with
pain. Medial and lateral collateral instability was evident
with positive Anterior Drawer Sign. Examination of left hip
joint revealed tenderness lateral aspect.

***

Opinion

After reviewing history of accident, clinical course,
diagnostic studies, subjective, objective findings, in my
opinion, Ms. Lovas with regards to claim number 90-
1125, 08-852146, cervical, dorsal and lumbar
myositis, tendonitis right shoulder and arm, bulging
disc at L5-S1, lumbar and cervical radiculopathy,
post headache syndrome, rotator cuff strain, right,
trapezial myositis, contusion of buttock, contusion
of back, cervical sprain, thoracic sprain, lumbar
sprain, left knee sprain, contusion left elbow,
contusion left hip, substantial aggravation of pre-
existing chondromalacia patella left knee is
No. 12AP-638 10

permanently and totally disabled from engaging into
any gainful employment.

(Emphasis sic.)
{¶ 25} 8. On July 14, 2011, at claimant's own request, she was examined by
neuropsychologist James M. Lyall, Ph.D. In his five-page narrative report, Dr. Lyall
states:
SUMMARY AND CONCLUSIONS

It appears that we have a fifty-seven year old woman who
was working successfully, up until a 1990 industrial injury, in
which she feel [sic] sixteen feet injuring her back and other
orthopedic areas. She was off work for over twelve years, by
her own report, and then was able to return to work
performing secretarial duties. It appears that she continued
these duties, up until about 2008 when she had a second
industrial injury. The claimant reports that the second
industrial injury has improved significantly but she
continues to have serious and enduring back and rib cage
difficulties as a result of her initial 1999 [sic] industrial
injury. She continues to receive medical care for her original
injury and is taking a Pain Patch and Nucynta for pain relief.
She still describes her pain as quite high as a result of her
original 1990 industrial injury. It should also be noted that
the claimant has two allowed psychological conditions
associated with her 1990 injury. These include Depressive
Disorder and Dysthymic Disorder.

The current evaluation points to significant continuing
symptoms of depression. These symptoms are seen both on
the Mental Status Examination and on the MMPI-2 profile.
In fact, the claimant's level of depression on the MMPI-2
profile appears to be within the severe range. The claimant
shows significant signs of depression throughout the
interview and even in the testing room when she felt she was
not being observed she was discovered to be crying. The
claimant has continued in psychological treatment with Dr.
Duval for going on three years. She also uses the
antidepressant Cymbalta as well as Ambien and Elavil in
treating her depressive symptoms.

***
No. 12AP-638 11

Utilizing the AMA Guidelines for Impairment Due to Mental
and Behavioral Disorders, Fifth Edition, we see moderate to
severe impairment due exclusively to a combination of the
claimant's two psychological conditions to include
Depressive Disorder and Dysthymic Disorder. This would
fall at Class 4 and yield forty-five percent (45%) impairment
due exclusively to a combination of the two psychological
conditions to the whole body.

This claimant's functional abilities are quit[e] complicated by
her allowed psychological conditions and make it difficult for
her to engage in regular normal activities, let alone, the
complicated actions required in a work atmosphere. She
shows signs of significant problems in activities of daily
living, socialization, focus and concentration and adaptation
to stress. Taking these factors into account and the high
degree of the claimant's impairment due to her psychological
conditions, it is this examiner's opinion to a reasonable
degree of psychological certainty that the claimant will be
unable to engage in regular remunerative competitive
employment due to her psychological difficulties to the
whole body. As such, it is this examiner's opinion that the
claimant will be permanently and totally disabled due to a
combination of her two psychological conditions as
described above.

{¶ 26} 9. On July 25, 2011, claimant filed an application for PTD compensation.
In support, claimant submitted the May 25, 2011 report of Dr. Patel and the July 14, 2011
report of Dr. Lyall.
{¶ 27} 10. On August 22, 2011, at relator's request, claimant was examined by
Richard N. Kepple, M.D., for all the allowed conditions in the 2008 claim. In his six-page
narrative report, Dr. Kepple responded to several questions:
Based on the current objective findings and the allowed
physical conditions, is Ms. Lovas capable of performing any
form of remunerative employment? Please indicate the type
of work Ms. Lovas is capable of performing. Please present
rationale.

Based on my examination and review of the provided
medical records, Ms. Lovas is capable of sustained
remunerative employment in a primarily sedentary capacity
that is upper extremity oriented and does not involve
operation of levers or pedals with her left lower extremity.
No. 12AP-638 12

These restrictions are based solely on the allowed conditions
of claim 08-852146.

In your medical opinion, based on a reasonable
degree of medical certainty and the allowed physical
conditions, is Ms. Lovas permanently and totally
disabled?

Ms. Lovas is not permanently and totally disabled due to any
of the allowed conditions of claim number 08-852146. The
contusion injuries have all resolved, as have the sprain
injuries of the neck and thoracic spine. Left knee/leg sprain
has also resolved, but the chondromalacia patella allowance
remains mildly symptomatic. As it has been 3 years since the
injury and almost 2 years since the left knee surgery, the
aggravation allowance relative to the left knee must be
considered to have reached maximum medical improvement.

(Emphasis sic.)
{¶ 28} 11. On October 26, 2011, at the commission's request, claimant was
examined by psychologist Steven B. Van Auken, Ph.D., who issued a ten-page narrative
report. Dr. Van Auken examined only for the allowed psychological conditions in the
1990 claim. That is, Dr. Van Auken examined claimant for the claim allowances described
as "depressive disorder" and "dysthymic disorder."
{¶ 29} 12. On November 1, 2011, Dr. Van Auken completed a form captioned
"Occupational Activity Assessment[,] Mental & Behavioral Examination." On the form,
Dr. Van Auken indicated by his mark, "[t]his injured worker is incapable of work." In the
space provided, Dr. Van Auken wrote:
In and of themselves, Ms. Lovas's [sic] depressive symptoms
- - including diminishments in concentration, energy level,
social tolerance, and stress tolerance - - would prevent her
from succeeding in sustained remunerative employment.

{¶ 30} 13. On December 15, 2011, at the commission's request, claimant was
examined by Paul B. Bartos, M.D. Dr. Bartos examined for all the allowed physical
conditions of the two industrial claims. In his seven-page narrative report dated January
8, 2012, Dr. Bartos concluded:
Based upon the history and physical examination, review of
the medical documentation provided, review of the
No. 12AP-638 13

mechanism of injury, treatment received and response to
treatment, as well as the effect of the injury on her activities
of daily living, it is my professional medical opinion within
reasonable medical certainty that the claimant is capable of
light duty work. She is certainly capable of lifting 20 pounds
on an occasional basis and 10 pounds frequently. She may
need to change positions as needed from sitting to standing
depending on her symptoms.

{¶ 31} 14. On December 15, 2011, Dr. Bartos completed a Physical Strength Rating
form. On the form, Dr. Bartos indicated by his mark that claimant is capable of "light
work."
{¶ 32} 15. Following an April 11, 2012 hearing, a staff hearing officer ("SHO")
issued an order that awards PTD compensation starting July 11, 2011. The SHO also
allocated the award between the two industrial claims. Twenty-five percent of the award
was allocated to the 2008 claim for which relator is liable. Seventy-five percent of the
award was allocated to the 1990 claim. The SHO's order explains:
[I]t is the order of the Staff Hearing Officer that the
Application filed 07/25/2011 for Permanent Total Disability
Compensation be granted to the following extent;

Permanent total disability benefits are hereby awarded from
07/11/2011 (less any compensation that previously may have
been awarded over the same period), and to continue
without suspension unless future facts or circumstances
should warrant the stopping of the award and that payment
be made pursuant to R.C. 4123.58(A).

This order is based upon the narrative report from Dr.
Steven [Van Auken], Ph.D., Dr. T.M. Patel, M.D. and Dr.
James Lyall, Ph.D. who all indicate that the Injured Worker
is permanently and totally disabled and unable to engage in
any sustained remunerative employment.

The Staff Hearing Officer finds that it is not necessary to
consider the Injured Worker's disability factors since the
Injured Worker has reached maximum medical
improvement and is medically unable to perform any
sustained remunerative employment.
No. 12AP-638 14

The Staff Hearing Officer relies upon the case of State ex rel.
Galion Mfg. Div. Dresler Indus. Inc. v. Haygood (1991), 60
Ohio St.3d 38 wherein the court states;

A claimant who has multiple allowed conditions is not
required to show that each condition standing alone, is work
prohibited…while permanent total disability benefits may
never be denied solely on the basis of medical evidence
without consideration of Stephenson factors contained in the
record, there are some situations wherein an award of such
benefits may properly be based on medical factors alone. It
would serve no practical purpose for the Commission to
consider non-medical factors in extreme situations where
medical factors alone preclude sustained remunerative
employment, since non-medical factors will not render the
claimant any more or less…able to work.

Permanent total disability benefits are to begin 07/11/2011,
the date of Dr. T.M. Patel's report which is the first reliable
medical report indicating that the Injured Worker is
permanently and totally disabled.

It is further ordered that the above award be allocated as
follows:

75% of the award is to be paid under claim number 90-
1125[.]

25% of the award is to be paid under claim number 08-
852146.

The Staff Hearing Officer bases his allocation of the award on
the medical reports of Dr. Steven [Van Auken], Dr. T.M.
Patel and Dr. James Lyall. Dr. Patel examined the Injured
Worker and makes no determination as to the "breakdown"
regarding percentage of impairment in each file. Dr. [Van
Auken] and Dr. Lyall all base their opinion of permanent
total disability solely based upon the allowed psychological
condition which is only recognized in claim number 90-1125.

The Staff Hearing Officer finds that some allocation shall be
placed in claim number 08-852146 as claim number 08-
[852146] is the injury that removed the Injured Worker from
the work force noting that the Injured Worker had returned
to work after his [sic] injuries in claim number 90-1125 for a
substantial period of time.
No. 12AP-638 15

{¶ 33} 16. On April 30, 2012, relator moved for reconsideration. On June 20,
2012, the three-member commission denied reconsideration.
{¶ 34} 17. On July 31, 2012, relator, Cafaro Management Company, filed this
mandamus action.
Conclusions of Law:
{¶ 35} Preliminarily, some observations are in order. The commission, through its
SHO's order of April 11, 2012, awarded PTD compensation based upon the two industrial
claims. Further, the award was based upon the medical reports of Drs. Van Auken, Lyall,
and Patel without reference to the vocational factors. That is, the commission determined
that the allowed conditions of the two industrial claims prohibit claimant from
performing any sustained remunerative employment, a finding that requires an award of
PTD compensation without reference to the non-medical or vocational factors. See Ohio
Adm.Code 4121-3-34(D)(2)(a).
{¶ 36} Only the 1990 claim has allowed psychological conditions. That claim is
allowed for "depressive disorder" and "dysthymic disorder."
{¶ 37} At claimant's request, Dr. Lyall, a neuropsychologist, examined only for the
allowed psychological conditions in the 1990 claim. Dr. Lyall opined that the allowed
psychological conditions render claimant "permanently and totally disabled." Thus, Dr.
Lyall's report alone supports an award of PTD compensation based solely upon the 1990
claim.
{¶ 38} At the commission's request, Dr. Van Auken, a psychologist, examined
claimant only for the allowed psychological conditions of the 1990 claim. Dr. Van Auken
opined that the allowed psychological conditions "would prevent her from succeeding in
sustained remunerative employment." Thus, Dr. Van Auken's report alone supports an
award of PTD compensation based solely upon the 1990 claim.
{¶ 39} At claimant's request, Dr. Patel examined for all the allowed physical
conditions of the two industrial claims. Dr. Patel did not examine for the allowed
psychological conditions in the 1990 claim. Dr. Patel opined that the allowed physical
conditions of both industrial claims render claimant "permanently and totally disabled
from engaging into any gainful employment." Thus, Dr. Patel's report, on its face, is the
only relied upon report that connects both industrial claims to the PTD award.
No. 12AP-638 16

{¶ 40} Based upon the above observations, it is clear that elimination of Dr. Patel's
report from evidentiary consideration would leave the PTD award unconnected causally
to the 2008 claim. If relator can eliminate Dr. Patel's report from evidentiary
consideration, there would be no evidence upon which the commission relied to support
any allocation of the PTD award to the 2008 industrial claim. Consequently, relator
endeavors here to show that Dr. Patel's report is equivocal and, on that basis, presents no
evidence upon which the commission can rely.
{¶ 41} Given the above analysis, the first issue is whether the report of Dr. Patel
provides some evidence upon which the commission can rely to support a finding that
both industrial claims contributed causally to the inability to perform sustained
remunerative employment. Furthermore, if Dr. Patel's report is some evidence upon
which the commission can rely to support a finding that both industrial claims
contributed to claimant's disability, there is a further issue of whether the commission has
any basis to allocate 25 percent of the award to the 2008 industrial claim.
{¶ 42} Parenthetically, while relator suggests here that it is challenging the PTD
award itself, clearly it is not. Even with the elimination of Dr. Patel's report, the PTD
award is fully supported by the psychological conditions of the 1990 claim and the reports
of Drs. Lyall and Van Auken. Significantly, relator does not challenge the reports of Drs.
Lyall and Van Auken as providing the some evidence supporting the PTD award. Relator
only challenges the reliance upon Dr. Patel's report in order to eliminate any allocation of
the award to the 2008 claim.
Dr. Patel's Report
{¶ 43} Equivocal medical opinions are not evidence. State ex rel. Eberhardt v.
Flxible Corp., 70 Ohio St.3d 649, 657 (1994). Equivocation occurs when a doctor
repudiates an earlier opinion, renders contradictory or uncertain opinions or fails to
clarify an ambiguous statement. Id.
{¶ 44} A medical report can be so internally inconsistent that it cannot be some
evidence upon which the commission can rely. State ex rel. Lopez v. Indus. Comm., 69
Ohio St.3d 445 (1994); State ex rel. Taylor v. Indus. Comm., 71 Ohio St.3d 582 (1995).
However, a court will not second-guess a doctor's medical expertise to support a claim of
internal inconsistency. State ex rel. Young v. Indus. Comm., 79 Ohio St.3d 484 (1997).
No. 12AP-638 17

{¶ 45} In Dr. Patel's report, it can be observed that he listed all the allowed physical
conditions of the two industrial claims and concluded that those allowed conditions cause
an inability to engage in gainful employment. Relator calls this "Dr. Patel's shotgun
approach." (Relator's brief, at 15.)
Finding it "[m]ore troubling," relator asserts:
[T]here appears to be zero support listed for a number of the
allegedly disabling conditions including, but not limited to,
the following: post-traumatic headache syndrome; rotator
cuff strain, right; contusion of buttock; and contusion of
back. For example, there is absolutely no indication that Dr.
Patel observed any bruises (i.e. contusions) whenever he
physically examined Lovas.

(Relator's reply brief, at 6.)
{¶ 46} Relator asserts that Dr. Patel should have differentiated between the strains
and contusions that have allegedly resolved and those conditions that relator asserts here
were "much more significant." (Relator's reply brief, at 7.)
{¶ 47} Relator also faults the report on grounds that Dr. Patel allegedly failed to
connect claimant's subjective complaints to an allowed condition. Relator refers to this as
a "lumping technique." (Relator's reply brief, at 6.) That is, relator asserts that "the
allowed conditions should not have been lumped together." (Relator's reply brief, at 6.)
{¶ 48} Based upon relator's analysis of Dr. Patel's report, relator concludes that the
report is equivocal and thus cannot constitute some evidence upon which the commission
can rely to support the PTD award. The magistrate disagrees.
{¶ 49} Dr. Patel indicates in his report his awareness of the allowed physical
conditions of both industrial claims. His five-page report is divided into five parts. The
first part is captioned "History and Clinical Course." The second part is captioned
"Present Complaints." The third part is captioned "Physical Examination." The fourth
part is captioned "Review of Medical Records." The fifth part is captioned "Opinion."
{¶ 50} Under the caption "Physical Examination," the report indicates that Dr.
Patel examined the cervical spine, the right shoulder, the left elbow joint, the thoracic
spine, the lumbar spine, the left knee joint and the left hip. Dr. Patel states his clinical
findings as to each body area he examined.
No. 12AP-638 18

{¶ 51} Presumably, given the multitude of alleged physical conditions of the two
industrial claims, it can be said that some of the allowed conditions may contribute more
significantly to disability than others. Dr. Patel did not endeavor to address this.
{¶ 52} Perhaps a reference to the commission's medical examination manual,
effective July 2012, may be helpful to an understanding of the issue relator attempts to
raise even though no party to this action makes reference to the manual.
The introduction to the manual states:
This Manual presents Commission policies for independent
medical examinations and medical file reviews. The purpose
of the independent medical examination (IME) is to
determine the degree of impairment resulting from an
allowed work injury. Most examinations are to assist the
Commission in the consideration of Permanent Total
Disability (PTD). The first section of the manual explains
administrative and examination policies common to all
Commission independent examinations and file reviews. The
remaining six sections of the manual describe specific
examination requirements for evaluating various body parts,
regions, or organ systems affected by an industrial injury or
disease, and some special considerations related to
maximum medical improvement.

(Medical Examination Manual 1.
{¶ 53} Under the heading "Examinations By Body Systems[,] Musculoskeletal,
Cardiovascular, Respiratory, Central and Peripheral Nervous System," the manual
provides the commission's requirements for an "opinion." Thereunder, the second
enumerated paragraph provides:
2. Based on AMA Guides, Fifth Edition, and with reference to
the Industrial Commission Medical Examination Manual,
provide the estimated percentage of whole person
impairment from each of the allowed condition(s). Please list
each condition and whole person impairment separately, and
then provide a combined whole person impairment. If there
is no impairment for an allowed condition, indicate zero
percent.

Cite the AMA Guides source for your impairment opinion.
(Medical Examination Manual 31.)
No. 12AP-638 19

{¶ 54} Had Dr. Patel followed the above noted provisions of the commission's
medical examination manual, perhaps much of relator's argument would have been
undermined. However, Dr. Patel was not an independent medical examiner covered by
the manual. Dr. Patel was not required to use the AMA Guides, Fifth Addition, and there
was no indication that he did. Relator cites to no authority suggesting that a claimant-
requested medical report must apply the AMA Guides in order that the opinion contained
therein constitutes some evidence upon which the commission can rely.
{¶ 55} Again, the magistrate recognizes that relator has not argued that Dr. Patel
was required to follow the commission's medical examination manual. Nevertheless, the
magistrate finds the above discussion helpful to a resolution of relator's challenge to the
report of Dr. Patel.
{¶ 56} In short, the magistrate finds that Dr. Patel's report is some evidence
connecting the 2008 claim to permanent and total disability.
The Allocation
{¶ 57} Given that Dr. Patel's report provided the commission with some evidence
connecting the 2008 industrial claim to permanent and total disability, the further issue is
whether the commission has any basis to allocate 25 percent of the award to the 2008
claim.
Again, the commission explains its allocation decision as follows:
The Staff Hearing Officer bases his allocation of the award on
the medical reports of Dr. Steven [Van Auken], Dr. T.M.
Patel and Dr. James Lyall. Dr. Patel examined the injured
Worker and makes no determination as to the "breakdown"
regarding percentage of impairment in each file. Dr. [Van
Auken] and Dr. Lyall all base their opinion of permanent
total disability solely based upon the allowed psychological
condition which is only recognized in claim number 90-1125.

The Staff Hearing Officer finds that some allocation shall be
placed in claim number 08-852146 as claim number 08-
[852146] is the injury that removed the Injured Worker from
the work force noting that the Injured Worker had returned
to work after his [sic] injuries in claim number 90-1125 for a
substantial period of time.
No. 12AP-638 20

{¶ 58} In State ex rel. Erieview Metal Treating Co. v. Indus. Comm., 10th Dist. No.
04AP-447, 2005-Ohio-1154, affirmed 109 Ohio St.3d 147, 2006-Ohio-2036, this court,
speaking through its magistrate, states:
In State ex rel. yellow Freight Sys., Inc. v. Indus. Comm.
(1994), 71 Ohio St.3d 139, 642 N.E.2d 378, the Supreme
Court of Ohio applied the principles set forth in State ex rel.
Noll v. Indus. Comm. (1991), 57 Ohio St.3d 203, 567 N.E.2d
245, to the commission's practice of allocating PTD awards
involving multiple industrial claims. The Yellow Freight
court explained:

All matters affecting the rights and obligations of the
claimant or employer merit an explanation sufficient to
inform the parties and potentially a reviewing court of the
basis for the commission's decision.

Id. at 142, 642 N.E.2d 378. (Emphasis sic.)

Clearly, the basis for the allocation must be consistent with
the medical evidence relied upon in support of the award.
State ex rel. Hay v. Indus. Comm. (1990), 52 Ohio St.3d 99,
555 N.E.2d 965.

In Hay, the commission divided a PTD award between two
claims, assigning 35 percent to the 1971 claim, and 65
percent to the 1975 claim. The commission's PTD award was
based upon the reports of Dr. Gary I. Katz and Dr. Stephen P.
Combs. However, Drs. Katz and Combs attributed the claims
disability exclusively to the 1975 claim. In mandamus, the
commission argued that its 35 percent allocation to the 1971
claim was supported by a prior 35 percent permanent partial
disability award in the 1971 claim. Rejecting the
commission's argument, the Hay court explained that PTD is
not measured numerically, but, instead, on the claimant's
ability to engage in sustained remunerative employment.
The Hay court ordered that the commission allocate the PTD
award wholly to the 1975 claim, because the relied-upon
medical evidence compelled that result.

Interestingly, in Hay, the court noted that the 1971 claim had
generated $87 in paid medical expenses, no TTD
compensation, and the 35 percent permanent partial
disability award. The Hay court further noted that the 1975
claim had resulted in $54,000 in paid medical bills, $28,000
No. 12AP-638 21

in TTD compensation, and a 22 percent permanent partial
disability award. Thus, the decision at least suggests that a
comparison of the compensation and benefits paid in the
claims may be relevant evidence to consider in an allocation.

Id. at ¶ 29-32.
{¶ 59} Here, the commission's allocation of 25 percent of the award to the 2008
claim is not necessarily inconsistent with the medical evidence relied upon in support of
the award. This is so because the report of Dr. Patel does connect PTD to the 2008 claim
as well as the 1990 claim.
{¶ 60} Moreover, it was not necessarily improper for the commission to point out
in its order that it was the injury in the 2008 claim that removed claimant from the
workforce, given that claimant's last working day was the August 25, 2008 injury. Thus,
some percentage allocation to the 2008 claim would be proper, but at what percentage?
{¶ 61} It is not obvious from the record before this court how the commission
determined that 25 percent of the award should be allocated to the 2008 claim nor does
the commission's order offer any explanation. Moreover, the commission here offers no
explanation in this mandamus action.
{¶ 62} Given the commission's duty to explain the basis for its allocation, the
magistrate concludes that the commission abused its discretion by allocating 25 percent
of the award to the 2008 claim without an explanation that this court can review in
mandamus.
{¶ 63} Accordingly, it is the magistrate's decision that this court issue a writ of
mandamus ordering the commission to vacate that portion of its SHO's order of April 11,
2012 that allocates the award, and to enter a new order in a manner consistent with this
magistrate's decision that properly allocates the award between the two industrial claims.

/s/ Kenneth W. Macke
KENNETH W. MACKE
MAGISTRATE
No. 12AP-638 22

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).