State ex rel. Bea v. Kroger Co. , 2000 Ohio 184 ( 2000 )

[Cite as State ex rel. Bea v. Kroger Co., 90 Ohio St. 3d 380, 2000-Ohio-184.]
THE STATE EX REL. BEA ET AL., APPELLEES, v. KROGER COMPANY, APPELLANT.
[Cite as State ex rel. Bea v. Kroger Co. (2000), 90 Ohio St. 3d 380.]
Workers’ compensation — Denial by Industrial Commission of claimant’s
motions seeking reinstatement of temporary total disability
compensation — Court of appeals’ return of cause to commission for
further consideration and amended order affirmed.
(No. 99-459 — Submitted August 22, 2000 — Decided December 20, 2000.)
APPEAL from the Court of Appeals for Franklin County, No. 97APD11-1523.
Appellee-claimant, Charlene Bea, was injured on July 2, 1994, while
working for appellant Kroger Company, a self-insured employer. Kroger certified
her claim, the application for which described her injury as “strained back, neck
and legs.” Appellee Industrial Commission of Ohio, however, has consistently
listed the allowed conditions as “acute lumbosacral sprain.”
Claimant initially missed two and one-half weeks of work and received
temporary total disability compensation benefits (“TTC”) from Kroger. She
returned and continued to work until March 17, 1996, when her industrial injury
again forced her from work. Kroger immediately began paying TTC.
In July 1996, claimant’s attending physician, Dr. C. Duane Bellamy,
submitted a C-84 request for TTC.1 The C-84 request certified claimant as unable
to return to her former position of employment. Dr. Bellamy left blank a space in
which to record “narrative diagnosis(es) for allowed conditions being treated
which prevent return to work.” He did, however, list under the headings
“objective and subjective findings” “restricted trunk and leg range of motion” and
low back pain, respectively.
Dr. Bellamy also prepared a narrative report on the same date. Under the
heading “impression,” he wrote:
“1. Chronic cervical sprain/strain resulting in chronic myofascial soreness
and tenderness in the upper back musculature and resulting in chronic pain in the
upper extremities.
“2. Chronic lumbar sprain/strain. Although Ms. Bea describes radiation
of pain into both legs, there is no indication on physical examination or on
previous diagnostic work-up of a radiculopathy.
“3. Chronic pain syndrome. Ms. Bea displays many of the features of
chronic pain syndrome including pain which has persisted for 2 years after an
injury and has not responded to conservative therapy. The pain is interfering with
her ability to function at home and in the work-place. She also shows signs of
depression, poor sleep pattern, the development of a dependent personality, and
generalized physical deconditioning.”
On August 24, 1996, Kroger stopped paying TTC. Approximately two
months later, claimant filed dual motions with the commission seeking TTC
reinstatement. She offered in support Dr. Bellamy’s October 14, 1996 request,
which, for the first time, listed “lumbosacral sprain/strain” as the sole cause of
disability.
A December 4, 1996 hearing before a district hearing officer (“DHO”)
held the issue in abeyance while claimant, who was at that time unrepresented,
obtained additional evidence sought by the hearing officer. Three months later,
claimant’s motions were denied.
“[B]ased on evidence that the claimant’s disability is due to several non-
allowed conditions including ‘CERVICAL SPRAIN, CHRONIC PAIN
SYNDROME, DEPRESSION’ * * * the claimant cannot be found disabled due
to the allowed claim.”
A staff hearing officer affirmed, finding the subsequent letter from Dr.
Bellamy to be unpersuasive. Further appeal was refused by the commission.
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Claimant filed a complaint in mandamus in the Court of Appeals for
Franklin County, alleging that the commission abused its discretion in denying
TTC. The court found that the commission may have abused its discretion in
refusing to pay TTC, given Dr. Bellamy’s October 14, 1996 C-84, which the court
feared the commission had overlooked. It thus returned the cause to the
commission for further consideration and amended order.
This cause is now before this court upon an appeal as of right.
__________________
Thompson, Meier & Dersom and Thomas D. Thompson, for appellee Bea.
Betty D. Montgomery, Attorney General, and Jon D. Grandon, Assistant
Attorney General, for appellee Industrial Commission.
Porter, Wright, Morris & Arthur and Karl J. Sutter, for appellant.
__________________
Per Curiam. Kroger certified claimant’s initial C-50 workers’
compensation claim application for “strain of legs, back and neck”—the latter two
encompassing the cervical back area. Commission orders, however, have
uniformly listed “acute lumbosacral sprain” as the only allowed condition. It is
unclear why this is so, and we find that this lack of clarity hinders further review.
Dr. Bellamy stated that a chronic pain syndrome arising from claimant’s
neck/upper back was interfering with her ability to work. If cervical strain is an
allowed condition, then there is no basis for the allegation that nonallowed
conditions are contributing to claimant’s inability to return to her former position
of employment.2 If it is not a part of the claim, however, Kroger’s assertions may
have merit. We, therefore, find further consideration to be critical.
The judgment of the court of appeals is affirmed, and the cause is returned
to the commission for further consideration and clarification.
Judgment affirmed.
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MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and
LUNDBERG STRATTON, JJ., concur.
FOOTNOTES:
1. The first page of this two-page form is dated July 10, 1996, and the
second July 29, 1996. The parties variously refer to it by both dates. The July 10
date will be used here.
2. We recognize that the DHO’s order cites Dr. Bellamy’s reference
to “depression” as well, but that clearly is just a passing observation on the
doctor’s part. Nothing in Bellamy’s July 10, 1996 narrative implies that claimant
has an emotional condition that is contributing to an inability to work.
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