State ex rel. Lowe v. Cincinnati, Inc. , 124 Ohio St. 3d 204 ( 2009 )

[Cite as State ex rel. Lowe v. Cincinnati, Inc., 124 Ohio St. 3d 204, 2009-Ohio-5864.]
THE STATE EX REL. LOWE, APPELLANT, v. CINCINNATI, INC. ET AL.,
APPELLEES.
[Cite as State ex rel. Lowe v. Cincinnati, Inc.,
124 Ohio St. 3d 204, 2009-Ohio-5864.]
Workers’ compensation — Exercise of continuing jurisdiction — Abuse-of-
discretion standard — New and changed circumstances — “Some
evidence” supported the commission’s decision — Judgment affirmed.
(No. 2008-1954 — Submitted September 1, 2009 — Decided
November 12, 2009.)
APPEAL from the Court of Appeals for Franklin County, No. 07AP-850,
2008-Ohio-4891.
__________________
Per Curiam.
{¶ 1} Appellant, Robert Lowe, challenges the termination of his
permanent total disability benefits by appellee Industrial Commission of Ohio.
Lowe injured his left shoulder in 1998 while working for appellee Cincinnati, Inc.
In 2003, he was awarded permanent total disability compensation beginning in
September 2002. The order discussed Lowe’s testimony at length:
{¶ 2} “The injured worker testified at hearing that he continues to suffer
from pain despite four surgical procedures on his left shoulder. The injured
worker testified that the pain that he experiences is so severe that it interferes with
his ability to ambulate as well as his ability to concentrate. The injured worker
further testified that he is unable to take care of his activities of daily living and
needs help from his wife in dressing and feeding.”
{¶ 3} In October 2005, Cincinnati, Inc. moved to terminate permanent
total disability based on “new and changed circumstances that have occurred
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subsequent to the initial order that show [Lowe] is capable of sustained
remunerative employment.” The motion included a surveillance video that
showed Lowe engaged in vigorous yard work. It also included an October 5,
2005 medical report by Dr. Bernard Bacevich, who had examined Lowe in 2003
in connection with his initial request for permanent total disability benefits. In his
2005 report, Dr. Bacevich made these observations from the surveillance tape:
{¶ 4} “The [August 2004 section of the] tape then showed [Lowe] using
a power mower which had to be pushed and pulled and he was using this with
both arms; again without any visible signs of difficulty in using his arms. He
would push and pull this repetitively, move it around trees and not show any
evidence of difficulty. At times he would use a single arm and pull the mower
backwards with his right arm, but he would be swinging his left arm, again,
without any evidence of difficulty. * * * The next section of the video was from
06/25/05 when it begins with him picking up a hedge clipper with his left arm and
not showing any signs of difficulty. The video, at times, would show him using
the hedge cutter with his right arm and other times he would use it in both arms.
He would then use a rake to clear the debris from the top of the bushes. He would
have his right arm at the proximal part of the handle and his left arm down lower
and would be pulling backwards quite forcefully and vigorously and, again, this
showed no evidence of any difficulty or pain. During these maneuvers his left
arm would be raised forward to the 90-degree position. At other times, he was
seen holding the trimmer in his left arm[,] using the rake in his right arm to scrape
off the cuttings and other times he would use both arms on the rake. There were
several episodes where he could easily pick up the hedge clippers with his left
arm. During all of these movements[,] [t]here is no evidence to indicate that he
was experiencing pain. This video demonstrated that he had full normal motion
of the shoulder in various positions with the arm at or below shoulder level.”
{¶ 5} The doctor concluded:
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{¶ 6} “Based upon reviewing this video, this man demonstrated physical
capabilities that were much different than the findings on my examination on
April 30, 2003. On my examination he had exquisite pain in the shoulder on
attempts at range of motion and had very severe guarding. His pain was also
aggravated by even bending the elbow whereas in the video he did not have any
apparent difficulty with the shoulder even with bending activities at the elbow,
lifting a hedge clipper, or using a hedge clipper or a rake. Based upon review of
this video, this man has either had a miraculous recovery between 04/30/03 and
the first portion of the video dated 08/03/04, or that he was demonstrating marked
symptom magnification during my examination. Based upon the recent video of
06/25/05, this man can certainly use his left arm for many activities which are
fairly strenuous in that he could use it for pushing and pulling a lawn mower and
also use it in cutting hedges and using a rake. Based upon this video, it is
certainly my opinion that this man is capable of gainful sustained remunerative
employment and my opinions rendered in my [2003] report are no longer valid.
The man is capable of using his left arm for repetitive activities certainly below
the shoulder level. He is capable of cutting grass, capable of using a hedge
trimmer, and capable of raking. This video does not support the fact that this man
has been granted permanent total disability benefits. This man can perform light
to medium work.”
{¶ 7} The commission could not reopen the issue of Lowe’s permanent
total disability eligibility unless it first determined that the exercise of continuing
jurisdiction was appropriate. The commission made that determination on
January 18, 2006:
{¶ 8} “[T]he employer has presented sufficient evidence to demonstrate
that there may have been a change in circumstances sufficient to warrant the
stopping of the Permanent and Total Disability award. Therefore the Staff
Hearing Officer refers the file to the medical section for an examination on the
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issue of whether the injured worker is capable of performing sustained
remunerative employment. The examining physician is instructed to examine the
injured worker and to review the video tape evidence submitted by the employer.”
{¶ 9} Dr. Andrew Freeman performed this examination and made these
observations from the videotape:
{¶ 10} “This videotape shows [Mr. Lowe] walking around a yard using a
hedge clipper. During this approximately 10 minute segment of video[,] Mr.
Lowe is seen to use both hands to operate a hedge clipper. He is seen to move
both arms in a rapid fashion. There is no physical evidence of pain such as
grimacing. Mr. Lowe is seen to move the hedge clipper, use a rake in his yard,
and reach to connect and disconnect his hose. He also moves the hose during this
period of time. His range of motion in the left shoulder is observed to be at least
30 degrees of extension, at least 20 degrees of adduction, at least 90 degrees of
abduction, and at least 100 degrees of forward flexion. He is observed at one
point during the video to throw a hose with his left arm rapidly going from a point
of 0 degrees of forward flexion to 100 degrees of forward flexion in the active
tossing of the hose.”
{¶ 11} Dr. Freeman then detailed his physical findings and reported that
the left shoulder was still symptomatic. He stated that Lowe’s conditions had
reached maximum medical improvement and that Lowe had a 20 percent
permanent impairment. Dr. Freeman concluded that Lowe was medically capable
of sedentary work, with a prohibition against reaching or overhead work with the
left arm.
{¶ 12} On September 5, 2006, a staff hearing officer issued a detailed
order that terminated Lowe’s permanent total disability benefits. The order first
affirmed the presence of new and changed circumstances sufficient to reopen the
issue of permanent total disability eligibility. The staff hearing officer noted that
the original grant of permanent total disability relied heavily on Lowe’s testimony
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concerning the physical limitations his injury imposed. The staff hearing officer
then discussed the videotape in depth and concluded that the “injured worker has
greater functional capacities than he testified to at the original hearing.”
{¶ 13} The staff hearing officer discussed the reports of Drs. Freeman and
Bacevich and concluded that Lowe was medically capable of sedentary sustained
remunerative employment. Lowe’s nonmedical disability factors were reviewed
and the staff hearing officer determined that they did not disqualify Lowe from
sedentary work. Accordingly, permanent total disability compensation was
stopped.
{¶ 14} After further reconsideration was denied, Lowe turned to the Court
of Appeals for Franklin County, seeking a writ of mandamus to compel the
commission to reinstate his permanent total disability compensation. The court of
appeals denied the requested writ of mandamus after determining that the
commission’s order was supported by “some evidence.” State ex rel. Lowe v.
Cincinnati, Inc., Franklin App. No. 07AP-850, 2008-Ohio-4891, ¶ 14.
{¶ 15} Lowe has now appealed to this court as of right.
{¶ 16} Lowe challenges the commission’s continuing jurisdiction to
reopen his permanent total disability eligibility, as well as the evidence underlying
its decision to stop his compensation. Neither challenge has merit.
Continuing Jurisdiction
{¶ 17} The commission’s continuing jurisdiction to reconsider
compensation eligibility is not unlimited and can be invoked only where there is
evidence of “(1) new and changed circumstances, (2) fraud, (3) clear mistake of
fact, (4) clear mistake of law, or (5) error by an inferior tribunal.” State ex rel.
Nicholls v. Indus. Comm. (1998), 81 Ohio St. 3d 454, 459, 692 N.E.2d 188. If the
commission determines that it has continuing jurisdiction to revisit an issue, its
order must state, in a clear and meaningful fashion, the basis upon which
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continuing jurisdiction is being invoked. Id. The parties debate whether the
January 3, 2006 staff hearing officer order satisfies this requirement.
{¶ 18} Nicholls was the first case to address this issue. Nicholls arose
from a commission order that granted reconsideration of a permanent total
disability award “based on the possibility of error” in the original permanent total
disability order. Id. at 456. When the commission later vacated the award, the
claimant filed an original action in this court, contesting the commission’s
authority to reconsider his permanent total disability award. We held that the
order granting reconsideration was fatally defective:
{¶ 19} “None of these [five continuing jurisdiction] prerequisites exists
here. Again, there has been no allegation of new and changed circumstances or
fraud. There is also no clear error of any kind. The reconsideration order cites
only the possibility of error, and an unspecified error at that.
{¶ 20} “Our approval of the staff hearing officer’s order on
reconsideration would effectively give the commission unrestricted jurisdiction.
Error is always possible, and its existence cannot be refuted when the commission
is not made to reveal what the perceived error is. We find, therefore, that the
mere possibility of unspecified error cannot sustain the invocation of continuing
jurisdiction.” (Emphasis sic.) Id. at 459, 692 N.E.2d 188.
{¶ 21} We expanded on Nicholls in State ex rel. Foster v. Indus. Comm.
(1999), 85 Ohio St. 3d 320, 707 N.E.2d 1122. There, an employer’s motion for
reconsideration of permanent total disability was granted based on “probative
evidence of a clear mistake of fact and of law in the order from which
reconsideration is sought.” We found this explanation, upon review, to be
inadequate:
{¶ 22} “In this case, the commission abandoned conjecture and found that
there was error. But, again, it does not identify the error. Thus, despite any
‘improvement’ in the order’s language, it still defies the spirit of Nicholls.
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Nicholls recognized that the propriety of continuing jurisdiction cannot be
evaluated if the commission does not reveal, in a meaningful way, why it was
exercised. In this instance, as in Nicholls, claimant cannot refute the allegation of
error without knowing what the alleged mistake is. Saying that an error is ‘real’
as opposed to ‘possible’ is equally hollow if there is no way to test the legitimacy
of the assertion.” Id. at 322, 707 N.E.2d 1122.
{¶ 23} Three years later, State ex rel. Royal v. Indus. Comm. (2002), 95
Ohio St. 3d 97, 766 N.E.2d 135, was decided. Reconsideration of Royal’s
permanent total disability award was granted “based on the possibility of an error
in the previous Industrial Commission order.” Id. at 98. The commission
followed that order with a bifurcated hearing on two issues – the propriety of
reconsideration and the merits of the permanent total disability claim. As to the
former, the commission affirmed the grant of reconsideration, citing the existence
of a mistake of law or fact. This subsequent order identified the mistakes as the
staff hearing officer’s (1) misrepresentation of a particular vocational report and
(2) failure to consider nonmedical disability factors. Id.
{¶ 24} We rejected this belated articulation of error:
{¶ 25} “Identification of error after reconsideration does allow a
reviewing court to adjudicate the propriety of the commission’s invocation of
continuing jurisdiction. It does little to help the party opposing the motion, since
it comes too late to allow a meaningful challenge to reconsideration at the
administrative level. Accordingly, appellants’ rehabilitation theory is rejected.”
(Emphasis sic.) Id. at 100, 766 N.E.2d 135.
{¶ 26} The commission in Lowe’s case used its continuing jurisdiction to
revisit Lowe’s permanent total disability eligibility based on “sufficient evidence
to demonstrate that there may have been a change in circumstances sufficient to
warrant the stopping of the Permanent and Total Disability award.” The order
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then stated that new evidence had been obtained that potentially demonstrated that
Lowe was medically capable of sustained remunerative employment.
{¶ 27} Lowe focuses on the words “may have been” and argues that the
use of this phrase means the commission’s finding lacks the specificity demanded
by Nicholls and its progeny. This proposition, however, elevates form over
substance, while ignoring the larger purpose of Nicholls, Foster, and Royal. The
point of those cases was not to ensure that certain words were either used or
avoided. It was to ensure that litigants and reviewing courts would know why
continuing jurisdiction/reconsideration had been exercised.
{¶ 28} Lowe cannot credibly allege that the presence of the words “may
have been” confused him as to why continuing jurisdiction was being exercised.
The January 3, 2006 order clearly stated that allegations of new and changed
circumstances related to Lowe’s ability to do sustained remunerative work.
Moreover, the employer’s continuing jurisdiction/termination motion included Dr.
Bacevich’s October 5, 2005 report as well as a memorandum that outlined the
surveillance evidence and the employer’s legal argument. Lowe knew in a timely
manner exactly why continuing jurisdiction was being sought and invoked.
{¶ 29} Accordingly, the commission’s decision to exercise continuing
jurisdiction over Lowe’s permanent total disability eligibility was not an abuse of
discretion.
Permanent Total Disability
{¶ 30} Permanent total disability compensation cannot be paid when there
is evidence of (1) actual sustained remunerative employment, (2) a physical
ability to do sustained remunerative employment, or (3) activities so medically
inconsistent with the claimed disability as to impeach the medical evidence
underlying the award. State ex rel. Lawson v. Mondie Forge, 104 Ohio St. 3d 39,
2004-Ohio-6086, 817 N.E.2d 880, ¶ 16. At issue are the second and third
elements.
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{¶ 31} The staff hearing officer’s September 5, 2006 order is
painstakingly thorough. It reaffirmed the existence of new and changed
circumstances. It stressed that permanent total disability was established, in large
part, on Lowe’s testimony at hearing. At that time, Lowe stated that his shoulder
pain was so severe that not only did it affect his ability to concentrate, but also
affected his ability to walk. He stated that he could not “take care of his activities
of daily living” and needed “help from his wife in dressing and feeding.”
{¶ 32} Against this background, a different staff hearing officer, three
years later, stated:
{¶ 33} “[T]he activities recorded on 06/25/2005 are the most compelling.
The videotape * * * shows the injured worker using both arms and hands to trim
bushes using hedge clippers. The videotape on that date also shows the injured
worker using both hands and arms to hold a rake which he is rapidly and
forcefully moving back and forth to remove debris from the tops of bushes.
{¶ 34} “ * * *
{¶ 35} “The Staff Hearing Officer finds that the videotape evidence
clearly demonstrates that the allowed conditions in this claim would not so
severely restrict the injured worker’s functional capacity as to limit his abilities to
participate in the activities of daily living or to prevent the injured worker from
performing the activities of dressing and feeding. The Staff Hearing Officer finds
that the [previous] Staff Hearing Officer relied upon the injured worker’s
testimony that he was not able to perform the activities of daily living, including
dressing and feeding and that he had a limited ability to walk due to pain[,] in
finding that the injured worker was permanently and totally disabled. Th[is] Staff
Hearing Officer finds that the videotape demonstrates that the injured worker’s
condition has changed since the original Permanent and Total Disability hearing
and that the injured worker has greater functional capacities than he testified to at
the original hearing.”
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{¶ 36} The staff hearing officer reviewed the new reports of Drs.
Bacevich and Freeman. Both doctors reached the same conclusion – Lowe was,
at a minimum, physically capable of sustained sedentary work. The staff hearing
officer, however, properly recognized that a capacity for sedentary work is
irrelevant if Lowe would be foreclosed from such employment by nonmedical
disability factors such as age, education, work history, and skill level. State ex
rel. Stephenson v. Indus. Comm. (1987), 31 Ohio St. 3d 167, 170, 31 OBR 369,
509 N.E.2d 946. The staff hearing officer performed a detailed nonmedical
analysis and concluded that Lowe’s nonmedical profile did not disqualify him
from sedentary employment.
{¶ 37} Lowe contends that the Freeman and Bacevich opinions are fatally
flawed because they are based on only two days of surveillance. Relying heavily
on Lawson, 104 Ohio St. 3d 39, 2004-Ohio-6086, 817 N.E.2d 880, he argues that
even if the video had demonstrated that he had a capacity for remunerative
employment on those days, it did not establish his ability to work on a sustained
basis and could not form the basis for either doctor’s opinion. This argument
fails.
{¶ 38} Lowe’s argument ignores a critical distinction between the
evidence in this case and in Lawson. In Lawson, the commission had terminated
permanent total disability based on the medical report of Dr. Dunkin. 104 Ohio
St.3d 39, 2004-Ohio-6086, 817 N.E.2d 880, ¶ 8. Dr. Dunkin reviewed
surveillance evidence of Lawson’s activities, but did not do a medical
examination. Id. at ¶ 28. The doctor had determined that Lawson was not
permanently and totally disabled based solely on his evidentiary review. This
conclusion, in and of itself, was not problematic. It became problematic,
however, when the commission concluded that the surveillance evidence revealed
no activities that were medically inconsistent with the medical evidence that was
relied on to support the initial award of permanent total disability compensation.
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This conclusion, in turn, effectively invalidated Dr. Dunkin’s report, because
when the surveillance evidence was discredited, the report was left without
foundation. Id. at ¶ 28-29, 33. This lack of foundation is why termination of
compensation for permanent total disability could not be upheld in Lawson.
{¶ 39} The medical evidence in this case is different. Dr. Freeman did not
simply view the videotape. He personally examined Lowe, and based upon that
exam, determined that Lowe was capable of sustained sedentary employment.
Thus, even if the surveillance evidence had been discredited — which in this case
it was not — Dr. Freeman’s opinion was independently sustained by his own
examination findings. In other words, the surveillance evidence is irrelevant to
the viability of Freeman’s report.
{¶ 40} The medical reports in this case, combined with the video and the
commission’s nonmedical analysis, are “some evidence” supporting the
commission’s decision.
{¶ 41} The judgment of the court of appeals is affirmed.
Judgment affirmed.
MOYER, C.J., and PFEIFER, LUNDBERG STRATTON, O’CONNOR,
O’DONNELL, LANZINGER, and CUPP, JJ., concur.
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Weisser & Wolf and Mark B. Weisser, for appellant.
Dinsmore & Shohl, L.L.P., and Gary E. Becker, for appellee Cincinnati,
Inc.
Richard Cordray, Attorney General, and Rema A. Ina, Assistant Attorney
General, for appellee Industrial Commission.
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