State ex rel. Stinespring-Welch v. Indus. Comm. , 2018 Ohio 1366 ( 2018 )

[Cite as State ex rel. Stinespring-Welch v. Indus. Comm., 2018-Ohio-1366.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Grace Stinespring-Welch, :
Relator, :
v. : No. 16AP-878
Susan C. Miller, : (REGULAR CALENDAR)
Millers Reliable Waste Service et al.,
:
Respondents.
:
D E C I S I O N
Rendered on April 10, 2018
On brief: Richard L. Williger Co., LPA, and Richard L.
Williger, for relator.
On brief: Michael DeWine, Attorney General, and
Amanda B. Brown, for respondent Industrial Commission of
Ohio.
IN MANDAMUS
ON OBJECTIONS TO THE MAGISTRATE'S DECISION
KLATT, J.
{¶ 1} Relator, Grace Stinespring-Welch, commenced this original action in
mandamus seeking an order compelling respondent, Industrial Commission of Ohio
("commission"), to vacate the September 6, 2016 order of its staff hearing officer ("SHO")
denying her application for permanent total disability ("PTD") compensation, and to enter
an order that grants said compensation.
{¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of Appeals,
we referred this matter to a magistrate who issued a decision, including findings of fact and
No. 16AP-878 2
conclusions of law, which is appended hereto. The magistrate found that Dr. Tosi's report
provides some evidence supporting the commission's denial of PTD compensation. The
magistrate further found that contrary to relator's contention, Ohio Adm.Code 4121-3-
34(D)(3)(i) does not require a "combined effects" review. Therefore, the magistrate has
recommended that we deny relator's request for a writ of mandamus.
{¶ 3} Relator has filed objections to the magistrate's decision. In her first objection,
relator contends that Dr. Tosi's report constitutes only a "scintilla" of evidence when
compared with the reports of Dr. Weinstein and Dr. Aronson. According to relator, because
the reports of Dr. Weinstein and Dr. Aronson are more recent and persuasive, Dr. Tosi's
report is not "some evidence" on which the commission could rely in denying relator PTD
compensation. We disagree.
{¶ 4} Relator is essentially asking this court to reweigh the medical evidence. That
is not our role. It is well-established that the commission is the trier of fact and this court
will not substitute its judgment for that of the commission. State ex rel. Honda of Am. Mfg.
Co., Inc. v. Indus. Comm., 10th Dist. No. 14AP-82, 2014-Ohio-5245, ¶ 10 (the commission
is the exclusive evaluator of factual evidence in determining whether an individual is
entitled to compensation). The presence of conflicting medical evidence does not invalidate
Dr. Tosi's report. Because Dr. Tosi conducted his examination less than 24 months prior
to relator's PTD application, his report is not stale. Ohio Adm.Code 4121-3-34(C)(1). Dr.
Tosi's report is more than a "scintilla" of evidence. Because Dr. Tosi's report is some
evidence on which the commission could rely, the commission did not abuse its discretion
in denying relator's application for PTD compensation. Therefore, we overrule relator's
first objection.
{¶ 5} In her second objection, relator contends that the magistrate should have
found that the commission failed to consider whether the allowed psychiatric condition in
combination with the allowed physical condition prevented relator from engaging in
sustained remunerative employment as required by Ohio Adm.Code 4121-3-34(D)(3)(i).
Again, we disagree.
{¶ 6} Contrary to relator's contention, the commission did consider whether
relator's psychiatric condition in combination with her allowed physical condition
prevented her from engaging in sustained remunerative employment. The commission
No. 16AP-878 3
specifically considered the report of Paul Scheatzle, D.O., who opined that relator was
capable of light work with some restrictions. The commission then considered Dr. Tosi's
report in connection with her allowed psychological condition. The commission discussed
both doctor's reports in determining that relator was not entitled to PTD. Relator has not
shown that the commission applied an incorrect legal standard or abused its discretion in
denying relator PTD compensation. Therefore, we overrule relator's second objection.
{¶ 7} Following an independent review of this matter, we find that the magistrate
has properly determined the facts and applied the appropriate law. Therefore, we adopt
the magistrate's decision as our own, including the findings of fact and conclusions of law
contained therein. In accordance with the magistrate's decision, we deny relator's request
for a writ of mandamus.
Writ of mandamus denied.
BROWN, P.J., and BRUNNER, J., concur.
No. 16AP-878 4
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
The State ex rel. Grace Stinespring-Welch, :
Relator, :
v. : No. 16AP-878
Susan C. Miller, : (REGULAR CALENDAR)
Millers Reliable Waste Service et al.,
:
Respondents.
:
MAGISTRATE'S DECISION
Rendered on November 1, 2017
Richard L. Williger Co., LPA, and Richard L. Williger, for
relator.
Michael DeWine, Attorney General, and Amanda B. Brown,
for respondent Industrial Commission of Ohio.
IN MANDAMUS
{¶ 8} In this original action, relator, Grace Stinespring-Welch, requests a writ of
mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate
the September 6, 2016 order of its staff hearing officer ("SHO") that denies relator's
application for permanent total disability ("PTD") compensation, and to enter an order
granting the compensation.
Findings of Fact:
{¶ 9} 1. On October 4, 2008, relator was industrially injured while employed by
respondent Miller's Reliable Waste Service, a state-fund employer. On that date, relator
was attacked by a co-worker.
No. 16AP-878 5
{¶ 10} 2. Following a March 8, 2011 hearing, the three-member commission
allowed the claim (No. 08-885911) for "Sprain right wrist, lumbar sprain and post
traumatic stress disorder." The commission also awarded temporary total disability
("TTD") compensation beginning October 14, 2008 to March 8, 2011. Further, TTD
compensation was to be paid upon submission of additional medical evidence of continued
TTD.
{¶ 11} 3. On September 30, 2011, relator was initially examined and treated by
psychologist David Aronson, Ph.D. In his office notes, Dr. Aronson wrote:
The diagnosis of Prolonged Post Traumatic Stress (309.81) is
accurate. Ms. Stinespring continues to exhibit severe
symptoms of this disorder and continues to be very impaired
as a result of the psychological and emotional symptoms
experienced.
{¶ 12} 4. On July 23, 2014, at the request of the Ohio Bureau of Workers'
Compensation ("bureau"), relator was examined by psychologist Donald J. Tosi, Ph.D. He
issued a seven-page narrative report.
{¶ 13} In his report, under the caption "Review of Records," Dr. Tosi lists the dates
of 23 reports from Dr. Aronson that he reviewed following receipt of a "referral packet
provided by the BWC." The list chronologically begins with an August 2, 2013 report and
ends with a June 6, 2014 report.
{¶ 14} Under the caption "History of Present Illness," Dr. Tosi states:
The Injured Worker[] participated in physical therapy and
pain management (at Canton Pain Management). The Injured
Worker has been under psychological treatment with
Aronson, psychologist, for "three years," currently every two
weeks. She has consulted Dr. Mohan, psychiatrist, for "at least
three years," currently every other month. Prolonged Post-
Traumatic Stress Disorder (309.81) is allowed in this claim.
Diagnostic tests/procedures include MRIs, x-rays and an
EMG. There were no injury-related surgeries. Medications
include Lamictal, Lexapro and Invega. She takes no
prescription pain medication. Past medications include
Escitalopram and Abilify. The Injured Worker has not
participated in vocational rehabilitation. She states, "We are
talking about that now."
{¶ 15} Under the caption "Mental Status Examination," Dr. Tosi states:
No. 16AP-878 6
Cognitively, the Injured Worker appears to be a woman of
average intelligence. She is alert and oriented in all spheres
with adequate reality contact. Concentration and attention are
unimpaired. Comprehension of simple commands is
unimpaired. Stream of thought and flow of ideas are normal.
Educational deficits are absent. There is no evidence of
cognitive dysfunction due to psychoses, head injury, or
organicity. Perseveration/fragmentation, delusions, and flight
of ideas are absent. The Injured Worker expresses her thoughts
clearly and understandably. Thinking is goal-directed. Her
associations are reasonably well organized. Memory functions
are generally intact in all time frames. She gave a reasonable
account of her activities and life events in chronological order.
Abstract reasoning, concept formation, and fund of knowledge
are estimated to be within normal limits. She has a functional
understanding of everyday objects. Judgment is fair. She has a
history of dysfunctional marriages. Executive functions such as
decision making, flexibility, and social perceptions are intact.
Under the caption "Opinion," Dr. Tosi answers six questions:
Question 1: Has the Injured Worker reached a
treatment plateau that is static and well-stabilized, at
which no fundamental, functional, or psychological
change can be expected within reasonable medical
probability in spite of continuing medical treatment
or rehabilitative procedures (maximum medical
improvement)? Include rationale for your decisions.
The claim is allowed for Post-Traumatic Stress Disorder
(PTSD). Post-Traumatic Stress Disorder typically requires
thirteen to twenty psychotherapy sessions (ODG, 2012, 17th
edition). The Injured Worker has been under
psychological/psychiatric treatment for "at least three years."
Unrelated factors contribute to the Injured Worker's emotional
distress post-injury (i.e., stepdaughter placed in respite care,
2014; divorced from second husband, 2011; Injured Worker
sues employer and was in litigation, 2009-2011; partial
removal of thyroid, 2010; gallbladder surgery, 2011; kidney
stent, 2011). The Injured Worker has reached maximum
medical improvement.
Question 2: Can the Injured Worker return to his/her
former position of employment? If yes, are there any
restrictions or modifications?
No. 16AP-878 7
PTSD would prevent the Injured Worker from returning to her
former position of employment.
Question 3: Please provide a summary of any
functional limitations solely due to the psychological
condition(s) in this claim(s). In other words, please
indicate the type of work the Injured Worker can
perform and supportive rationale for your opinion.
The Injured Worker is able to function in a low to moderate
work stress situation.
Question 4: Are there any recommendations for
vocational rehabilitation?
Vocational rehabilitation should be considered.
Question 5: Is the current treatment necessary and
appropriate for the psychological condition(s)?
Treatment to date is appropriate for PTSD.
Question 6: What are the recommendations for any
proposed plan of treatment including the expected
length of treatment and results?
The Injured Worker should consult her psychologist once a
month over the next three to five months. Psychiatric visits
should be every three months over a six month period.
Psychiatric/psychological treatment should be for purposes of
maintenance.
{¶ 16} 5. On August 15, 2014, following the issuance of Dr. Tosi's report,
Dr. Aronson wrote the following office note:
In today's session, Grace and I talked about the IME
psychological report completed by Dr. Tosi, dated
07/23/2014. Dr. Tosi opined that Grace has reached
maximum psychological improvement (MMI) with regard to
her BWC allowed psychological disorder (post traumatic
stress disorder; PTSD). We also discussed the communication
I received from the BWC asking for my opinion about the issue
of MMI. The purpose of this note is to communicate my
opinion about this issue and to outline the current plan of
treatment. After careful consideration, it is my professional
opinion that Grace has reached maximum psychological
improvement (MMI) with regard to her post traumatic stress
No. 16AP-878 8
disorder as of today (08/15/2014). I do expect that she will
make additional small improvements in the future; however,
these are not the type of improvements that would result in
substantial functional change. Over the past few months,
Grace and I have been discussing a plan for her return to work
in a manner that she can tolerate and that will not cause her
PTSD to worsen. Grace has great difficulty around others,
especially if she does not know them. Her work situation must
be one that takes this into account. Grace has an established
relationship with the owner of a dry cleaning business. Prior
to her injury, Grace had worked for this man by ironing shirts
and doing seamstress work. Grace engaged in these activities
in her own shop as part of her own business that she had
established. This man is willing to have Grace resume ironing
of shirts, as the need arises. The plan is for Grace to engage in
this remunerative activity in her own home. By doing this in
her home, the probability of success is much higher because
the stress level for Grace is lower. This work will need to be
part-time in nature. Initially, the goal is for Grace to iron 50
shirts per week. The number may increase in the future as her
ability improves and based on this man's business needs.
During this time, Grace will need to continue involvement in
psychological and psychiatric treatment in order to maximize
the probability of success, to maintain gains she has made and
to prevent deterioration.
{¶ 17} 6. Following an October 31, 2014 hearing, an SHO issued an order
terminating TTD compensation as of August 15, 2014 based on a finding that the allowed
psychological condition has reached maximum medical improvement ("MMI"). The SHO
relied exclusively on the August 15, 2014 office note of Dr. Aronson. 7. Following a
February 12, 2016 office visit, Dr. Aronson wrote:
Over the past six months, Grace Stinespring Welch and I have
met for psychological therapy sessions every eight weeks; the
sessions have focused on maintaining reasonable control over
her post traumatic stress (PTSD) and preventing deterioration.
In addition to our meetings, Grace has received psychiatric
medication management sessions from Dr. Mohan. * * *
Unfortunately, Grace has demonstrated some deterioration in
her PTSD. She is spending more time in bed. She is more
anxious about being around people she does not know and she
has found it impossible to continue carrying out tasks and
activities she was doing three months ago. As an example, she
recently went to the grocery store and had to leave after getting
only a few things (instead of everything on her shopping list)
No. 16AP-878 9
due to her anxiety increasing dramatically. Another example of
her decreased functioning is that she had been preparing
healthy meals for the family and felt very proud of this
accomplishment. At this point, she has been unable to continue
this activity and has been relying on take-out food. She is not
even able to eat in a restaurant because of the worsening of her
PTSD. She feels guilty about this because she knows that her
family is eating in a less healthy manner. Grace and I discussed
this and we decided that we do need to increase the frequency
of her psychological therapy sessions to once every six weeks
on average (instead of once every eight weeks). This results in
an increase of one session over six months (5 sessions total).
Her psychiatric medication management sessions can remain
at once every eight weeks (4 sessions). * * * At this point, it
is my opinion, within a reasonable degree of
psychological certainty, that Grace Stinespring Welch
is unable to engage in any sustained remunerative
employment solely due to impairment from her BWC
allowed psychological condition (PTSD). As such, I
believe that she is permanently and totally disabled.
Further, she would be unable to participate in
vocational rehabilitation services. This is because of
the severity of her PTSD and the probability that
participation in vocational rehab would worsen her
allowed psychological condition.
(Emphasis sic.)
{¶ 18} 8. On April 22, 2016, relator filed an application for PTD compensation. In
support, relator appended to her application the February 12, 2016 office note of
Dr. Aronson.
{¶ 19} 9. On June 13, 2016, at the commission's request, relator was examined by
Paul T. Scheatzle, D.O. In his three-page narrative report, Dr. Scheatzle opines:
Discussion: Ms. Stinespring is a 54 year old female 8 years
status post right wrist sprain and lumbar sprain injuries with
complaints of chronic low back and right wrist pain. She has
been through conservative care. She had a hand surgery
evaluation as well as pain management interventions.
Currently no further injections or surgery are planned and she
has completed therapy. She remains on medications for
symptoms related to her allowed conditions and reports some
activity limitations due to symptoms related to her allowed
conditions.
No. 16AP-878 10
The injured worker has reached maximum medical
improvement. Her condition has plateaued and is not expected
to change further. It can be stated with a reasonable degree of
medical probability that with ongoing medical or rehabilitation
procedures that no further fundamental, functional or
physiologic improvement can be expected.
With regards to her sprain right wrist and lumbar sprain
injuries she is capable of light duty work activities with lifting
up to 20 lbs occasionally or 10 lbs more frequently. Would
recommend occasional use of the right hand for work activities
with no repetitive wrist flexion extension motions. Should use
good lift techniques and body mechanics for all work activities.
{¶ 20} 10. On July 12, 2016, at the commission's request, relator was examined by
psychologist, Donald J. Weinstein, Ph.D. In his six-page narrative report, Dr. Weinstein
opined that relator has a 24 percent whole person impairment related to the allowed
psychological condition.
{¶ 21} 11. On July 12, 2016, Dr. Weinstein also completed a form captioned
"OCCUPATIONAL ACTIVITY ASSESSMENT, Mental & Behavioral Examination." On the
form, Dr. Weinstein indicated by his mark "[t]his Injured Worker is incapable of work."
{¶ 22} 12. Following a September 6, 2016 hearing, an SHO issued an order denying
the PTD application. The SHO's order explains:
On 10/04/2008, the Injured Worker was injured when a "co-
worker" grabbed her right forearm, twisted and threw her to
the ground. The Injured Worker had conservative treatment
for the allowed physical conditions and is not currently treating
in the claim. The Injured Worker treats the allowed
psychological condition with counseling, currently one time
every six weeks, and medication.
Paul T. Scheatzle, D.O. examined the allowed physical
conditions of the claim on behalf of the Industrial Commission.
In his 06/13/2016 report, Dr. Scheatzle opined that the allowed
physical conditions had reached maximum medical
improvement and that there was an 8% whole person
impairment due to those conditions. Based upon his
examination of the Injured Worker, Dr. Scheatzle opined that
the Injured Worker was capable of light work with occasional
use of the right hand and no repetitive wrist flexion/extension
motion.
***
No. 16AP-878 11
Donald J. Tosi, Ph.D. examined the Injured Worker on the
allowed psychological condition on behalf of the Administrator
for purposes of determining whether same had reached
maximum medical improvement. Dr. Tosi found that the
allowed psychological condition had reached maximum
medical improvement.
Based upon this examination of the Injured Worker, Dr. Tosi
found that the Injured Worker is able to function in a low to
moderate work stress work situation and that vocational
rehabilitation should be considered.
The opinions of Dr. Tosi and Dr. Scheatzle are found
persuasive, and are adopted by the Staff Hearing Officer. Based
on the 07/23/2014 report of Dr. Tosi and the 06/13/2016
report of Dr. Scheatzle, the Staff Hearing Officer finds that the
Injured Worker is capable of performing light work with
occasional use of the right hand with no repetitive wrist
flexion/extension motion in a low to moderate work stress
situation.
As it has been found that the Injured Worker is capable of light
work with the restrictions set forth above, an analysis of the
Injured Worker's non-medical disability factors is appropriate
pursuant to State ex rel. Stephenson v. Industrial Commission
[31 Ohio St. 3d 167 (1987)].
The Injured Worker is 54 years old as of the time of hearing.
She is considered a person approaching middle age. The Staff
Hearing Officer finds that the Injured Worker has at least nine
years of productivity left in the work force before she would
reach an age when individuals traditionally retire. However,
many individuals work beyond the traditional age of
retirement. The Staff Hearing Officer finds there is sufficient
time remaining for the Injured Worker to look for work within
her restrictions and/or to retrain on a short-term basis for work
within her restrictions. As such, the Staff Hearing Officer finds
that the Injured Worker's age is a positive vocational factor.
The Staff Hearing Officer finds that the Injured Worker's
educational history is also a positive factor. The Injured Worker
is a high school graduate which is evidence of the abilities to
read, write, and perform basis [sic] math. These skills are
helpful in the performance of light and sedentary work.
Additionally, the record indicates the Injured Worker took
No. 16AP-878 12
classes at Stark State Technical College. The Injured Worker
testified she took one algebra class.
The Staff Hearing Officer also finds that the Injured Worker's
work history is a positive vocational factor. The Injured Worker
testified that she ran her own alteration and repair business for
28 years, up until 2008. This business had its own store front
and the Injured Worker had an average of three employees at
any time. The Injured Worker testified she kept her own
business records, did taxes with the assistance of a paid
preparation service, hired, fired, and supervised employees,
did payroll, and used a sewing machine. The Staff Hearing
Officer finds that from this job the Injured Worker developed
transferrable skills in customer service, working to precise
tolerances, following directions, supervising others and
keeping business records. Further, it appears that this type of
work, sewing and alterations, would be within the Injured
Worker's current work restrictions.
From June 2008 through October 2008, the Injured Worker
worked for the employer of record performing primarily office
work which involved answering the phones, billing, routing
trucks and using the computer. IC-2 indicates the job involves
sitting eight hours per day and lifting up to 10 pounds
frequently. The Injured Worker indicates she also occasionally
worked on the trash trucks. The Staff Hearing Officer finds that
the Injured Worker's office component of this job also appears
within her current restrictions. Thus, office work for a different
employer is an option for the Injured Worker. A short-term
computer class to teach basic skills needed in today's job
market would not be unreasonable. This job gave the Injured
Worker transferrable skills in entering data into a computer to
generate bills, in customer service from answering phones and
in following instructions.
The IC-2 indicates the Injured Worker last worked in 2008.
However, there is also an indication the Injured Worker ironed
shirts at home for a one month period in 2015. The IC-2
indicates the Injured Worker didn't feel she had adequate time
to prepare meals and carry out other daily activities while
performing this work. The Injured Worker testified she worked
up to 10 hours per week. The Injured Worker testified that she
has not looked for work since she stopped ironing shirts
approximately one year ago.
The Staff Hearing Officer finds that the Injured Worker also
has engaged in personal activity for which she could perform
No. 16AP-878 13
the same activity for remuneration. The Injured Worker
testified that she drives her granddaughter to school and also
picks her up after school and watches her 2-3 days a week.
Additionally, the Injured Worker's stepson is mentally
challenged. Although a health aid is provided to the stepson,
the Injured Worker testified that her husband also receives
government funds to provide care for his son as well. The
Injured Worker testified that she does assist in providing some
of the care for which her husband is compensated. It appears
that transportation jobs, for instance after school vans or for
light parts or transportation of vehicles between locations,
would be within the Injured Worker's current restrictions.
Further, some child care positions may be within the Injured
Worker's current restrictions. The Staff Hearing Officer finds
that the Injured Worker is performing duties consistent with
these types of jobs currently.
The Staff Hearing Officer finds that permanent total disability
is compensation of last resort to be awarded only after all
reasonable efforts to return to work at sustained remunerative
employment have failed. State ex rel. Wilson v. Industrial
Commission (1997), 80 Ohio St. 3d 250. It is not unreasonable
to expect an Injured Worker to participate in a return to work
effort or to take the initiative to improve their re-employment
potential. State ex rel. Wilson. The Injured Worker has not
attempted any vocational rehabilitation. Further, despite a
number of transferrable skills and a positive work history, the
Injured Worker has not made a good faith attempt to look for
work. The Injured Worker tried ironing at home for a one
month period, up to 10 hours a week approximately one year
ago. Per her application, this job interfered with her activities
at home. There has been no other effort to look for suitable
work or to retrain for same in the last year. The Staff Hearing
Officer finds that the Industrial Commission can demand
accountability of an Injured Worker who despite the time and
medical ability to do so, does not try to further their education
or learn new skills. State ex rel. Bowling v. National Can Corp.
(1996), 77 Ohio St. 3d 148. The failure to retrain for work within
ones restrictions and/or to look for work within ones
restrictions is a significant factor in denying this compensation
of last resort. The Staff Hearing Officer finds that Injured
Worker has not exhausted all reasonable efforts to return to
work at sustained remunerative employment.
Accordingly, the request for Permanent Total Disability
benefits is denied. The Staff Hearing Officer finds that the
Injured Worker's disability is not total and that she is capable
No. 16AP-878 14
of performing sustained remunerative employment or being
retrained for sustained remunerative employment.
{¶ 23} 13. On October 19, 2016, the three-member commission mailed an order
denying relator's request for reconsideration of the SHO's order of September 6, 2016.
{¶ 24} 14. On December 23, 2016, relator, Grace Stinespring-Welch, filed this
mandamus action.
Conclusions of Law:
{¶ 25} The commission, through its SHO, relied exclusively on the report of Dr. Tosi
in determining the mental component of residual functional capacity. Ohio Adm.Code
4121-3-34(B)(4).
{¶ 26} The main issue is whether Dr. Aronson's office notes reporting clinical
findings and circumstances occurring after the issuance of Dr. Tosi's July 23, 2014 report
have destroyed the evidentiary value of Dr. Tosi's report such that it cannot provide the
some evidence supporting the denial of the PTD application.
{¶ 27} Finding that Dr. Tosi's report provides some evidence supporting the
commission's decision notwithstanding Dr. Aronson's subsequent reporting of clinical
findings and circumstances, it is the magistrate's decision that this court deny relator's
request for a writ of mandamus, as more fully explained below.
{¶ 28} Citing this court's decision in State ex rel. Lloyd v. Indus. Comm., 10th Dist.
No. 07AP-79, 2007-Ohio-5020, relator argues that Dr. Tosi's report was issued
"significantly before Grace began working, and her subsequent decompensation as a result
there." (Relator's brief at 7.) Relator asserts that Dr. Tosi's report is thus "so devoid of any
contemporaneous information" that "fairness is simply not in play." (Relator's brief at 7.)
{¶ 29} In an apparent reference to Ohio Adm.Code 4121-3-34(C)(1)'s requirement
that the medical examination supporting the PTD application be conducted within 24
months prior to the filing of the application, relator asserts that Dr. Tosi's report "was just
on the edge of being a 'stale' document." (Relator's brief at 7.)
{¶ 30} It can be noted that this court's decision in Lloyd was premised on a decision
of the Supreme Court of Ohio in State ex rel. Sellards v. Indus. Comm., 108 Ohio St. 3d 306,
2006-Ohio-1058. Thus, a review of the Sellards case is in order.
The Sellards Case
No. 16AP-878 15
{¶ 31} William E. Sellards, Jr., injured his back in an industrial accident in 1998. He
reached MMI for his back injury in January 2001. In November 2001, he began seeing a
psychiatrist, Dr. J.T. Spare, for depression.
{¶ 32} On July 17, 2002, the commission additionally allowed the claim for "major
depressive disorder, single episode." Id. at ¶ 3. On October 17, 2002, Dr. Spare submitted
a C-9 treatment plan application that sought approval for psychotherapy and "medication
management." Id. That application was approved by the commission on October 22, 2002.
{¶ 33} Coincidentally, also on October 22, Sellards was examined by another
psychiatrist, Dr. Allan B. Levy, concerning the extent of his psychiatric disability. After
examining Sellards and thoroughly reviewing the records (which did not include
Dr. Spare's treatment plan), Dr. Levy concluded that Sellards' psychiatric condition was at
MMI.
{¶ 34} On November 26, 2002, Dr. Spare responded to Dr. Levy's report. Dr. Spare
indicated that Sellards was having a problem getting his medications filled at the pharmacy,
and that this problem was adversely effecting his treatment. This letter was the first
mention of any problem with payment for medication. On December 23, 2002, Sellards'
counsel phoned the bureau regarding prescription payment. The bureau responded with a
letter the next day indicating that an error had occurred and, as of that date, had been
corrected.
{¶ 35} At about the same time, a district hearing officer ("DHO") found that Sellards
had reached MMI based on Dr. Levy's report and, therefore, terminated TTD compensation
as of the December 18 hearing date. Sellards appealed and obtained another letter from
Dr. Spare. The letter, dated January 7, 2003, reiterated that Sellards' antidepressant
treatment has been, to some extent, limited as Dr. Spare had to rely on office samples for
treatment, rather than a prescription.
{¶ 36} Following a February 6, 2003 hearing, an SHO affirmed the DHO's decision
to terminate TTD compensation on MMI grounds. Further appeal and an additional
request for reconsideration were denied. Sellards then filed a mandamus action in this
court. This court denied the writ.
{¶ 37} On appeal as of right to the Supreme Court of Ohio, the Sellards court
reversed the judgment of this court. The Sellards court explains:
No. 16AP-878 16
The single issue presented is an evidentiary one. Sellards
challenges Dr. Levy's opinion of maximum medical
improvement as premature based on Dr. Spare's
contemporaneously approved treatment plan and urges its
disqualification. We agree with Sellards and accordingly
reverse the judgment of the court of appeals.
Prior to his examination by Dr. Levy, Sellards struggled to get
the treatment recommended by his treating physician, Dr.
Spare, who believed that Sellards would benefit from
medication and psychotherapy. The commission, in approving
that treatment, obviously wanted to give Sellards the
opportunity for further treatment. We believe that Sellards
merits that opportunity before maximum medical
improvement is assessed. Dr. Levy's opinion was premature
based on the commission's contemporaneous approval of Dr.
Spare's treatment program. Dr. Levy's opinion could not,
therefore, serve as evidence supporting denial of temporary
total disability compensation.
Id. at ¶ 19-20.
The Lloyd Case
{¶ 38} Errol D. Lloyd, Jr., was injured on January 11, 2005. His industrial claim was
allowed for "electrical shock." Lloyd at ¶ 4.
{¶ 39} Following his injury, Lloyd was referred for a psychiatric evaluation due to
the anxiety he was experiencing. This eventually led to a claim allowance for post traumatic
stress disorder and depression disorder. He was awarded TTD compensation due to his
psychological condition. Id.
{¶ 40} Lloyd's employer, Centimark Corporation, had Lloyd evaluated by Michael E.
Miller, M.D., who concluded in a March 22, 2006 report, that Lloyd was being deceptive
about a number of matters, including his chemical dependency history and reporting of
symptoms. Id. at ¶ 5. Dr. Miller also opined that Lloyd had reached MMI. Id. at ¶ 32.
{¶ 41} William C. Melchior, Ed.D., was treating Lloyd for his psychological
condition and requested authorization from Centimark, a self-insuring employer, to
increase treatment. Instead, Centimark filed a motion to terminate TTD compensation
based on Dr. Miller's report.
No. 16AP-878 17
{¶ 42} A DHO granted Centimark's motion to terminate TTD compensation. On
appeal to an SHO, the DHO's order was affirmed on grounds that Lloyd had reached MMI.
Id. at ¶ 33.
{¶ 43} Following the filing of a mandamus action in this court, the action was
assigned to a magistrate. The magistrate recommended that the writ issue. Adopting the
magistrate's decision, this court explained:
The course of treatment for relator had not yet been approved
when Dr. Miller examined relator.
The new course of treatment changed the treatment from
monthly to weekly. Dr. Miller was unaware of both the past
treatment and the future treatment plan when he wrote his
report. Applying Sellards, Dr. Miller's report could not
constitute some evidence to support a finding that relator had
reached MMI.
Id. at ¶ 8, 9.
Analysis
{¶ 44} Clearly, neither the Sellards case nor the Lloyd case compels the conclusion
urged by relator─that the evidentiary value of Dr. Tosi's July 23, 2014 report has been
destroyed by the subsequent office notes of Dr. Aronson.
{¶ 45} In Sellards, Dr. Levy's opinion was held to be "premature" because the
commission contemporaneously approved Dr. Spare's treatment program at the time Dr.
Levy rendered his MMI opinion. Id. at ¶ 20. Significantly, there was no dispute that the
commission had contemporaneously approved Dr. Spare's treatment program.
{¶ 46} In Lloyd, this court held that Dr. Miller's MMI opinion could not be relied on
by the commission to support termination of TTD compensation because Dr. Melchior's
request to increase treatment was approved subsequent to Dr. Miller's opinion. In Lloyd,
as in Sellards, there was no factual dispute that the requested change of treatment plan had
been approved.
{¶ 47} Here, the February 12, 2016 office visit note presents Dr. Aronson's
observations and opinions regarding relator's medical status. As earlier noted, Dr. Aronson
opined that relator "has demonstrated some deterioration in her PTSD" and that she is
"unable to engage in any sustained remunerative employment." Those clinical observations
No. 16AP-878 18
and medical opinions were very much in dispute in the adjudication of the PTD application.
It is the commission that weighs the medical evidence before it. Here, the commission
apparently rejected Dr. Aronson's opinions contained in his February 12, 2016 office visit
note and instead relied on the report of Dr. Tosi.
{¶ 48} Relator's argument for the elimination of Dr. Tosi's report from evidentiary
consideration because Dr. Aronson subsequently issued contrary opinions is untenable.
Again, neither Sellards nor Lloyd support relator's position.
Ohio Adm.Code 4121-3-34(D)(3)(i)
{¶ 49} Relator further argues that the SHO's order of September 6, 2016 fails to
comply with Ohio Adm.Code 4121-3-34(D)(3)(i), which provides:
In claims in which a psychiatric condition has been allowed and
the injured worker retains the physical ability to engage in
some sustained remunerative employment, the adjudicator
shall consider whether the allowed psychiatric condition in
combination with the allowed physical condition prevents the
injured worker from engaging in sustained remunerative
employment.
{¶ 50} According to relator, the SHO's order of September 6, 2016 "does not contain
a combined effects review" as required by the above-quoted rule. (Emphasis omitted.)
(Relator's brief at 6.) According to relator, "[e]ven a cursory review of the SHO decision *
* * reveals that this was not done." (Relator's brief at 7.) Relator cites to no authority other
than the rule itself. Moreover, the rule does not contain the term "combined effects review"
used by relator here. Rather the rule provides that the adjudicator shall consider the
allowed psychiatric condition in combination with the allowed physical condition.
{¶ 51} In State ex rel. Guy v. Indus. Comm., 10th Dist. No. 08AP-711, 2009-Ohio-
2553, this court states:
In the end, relator's contentions invoke the formerly required
"combined effects" review that arose when the claimant
presented both physical and psychological dimensions in a
request for disability compensation. Under such a review,
typically a single doctor assessed a claimant's ability in light of
the combined effects of the allowed physical and psychological
conditions. Ohio Adm.Code 4121-3-34(D)(3)(i) does not
require a "combined effects" review, but rather that the
conditions be considered in combination. Because the staff
No. 16AP-878 19
hearing officer's order does so, relator's single objection is
overruled.
Id. at ¶ 8.
{¶ 52} Apparently, relator confuses the formerly required "combined effects" review
with the language contained at Ohio Adm.Code 4121-3-34(D)(3)(i). Accordingly, relator's
argument lacks merit.
{¶ 53} Accordingly, for all the above reasons, it is the magistrate's decision that this
court deny relator's request for a writ of mandamus.
/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).