State ex rel. Knedler v. Indus. Comm. ( 2013 )

[Cite as State ex rel. Knedler v. Indus. Comm., 2013-Ohio-5537.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Charles W. Knedler, :
Relator, :
No. 12AP-804
v. :
(REGULAR CALENDAR)
Industrial Commission of Ohio, :
and Department of Rehabilitation
and Correction - Pickaway Correctional :
Institute,
:
Respondents.
:
D E C I S I O N
Rendered on December 17, 2013
Copp Law Offices, and Shawn M. Wollam, for relator.
Michael DeWine, Attorney General, and John Smart, for
respondent Industrial Commission of Ohio.
Isaac, Wiles, Burkholder & Teetor, LLC, and J. Miles Gibson,
for respondent Department of Rehabilitation & Correction -
Pickaway.
IN MANDAMUS
ON OBJECTIONS TO THE MAGISTRATE'S DECISION
T. BRYANT, J.
{¶1} Relator, Charles W. Knedler, filed an original action seeking a writ of
mandamus ordering respondent, Industrial Commission of Ohio ("commission"), to
vacate its July 13, 2010 order that exercised continuing jurisdiction over a January 13,
2010 order of its staff hearing officer ("SHO") awarding relator permanent total
disability ("PTD") compensation starting November 12, 2008, and to enter an order
No. 12AP-804 2
reinstating the January 13, 2010 SHO's order. Alternatively, relator requested that the
writ order the commission to vacate the portion of its July 13, 2010 order that
determined relator is unable to perform sustained remunerative employment and to
conduct a new hearing on the merits of the PTD application because one of the
commissioners was absent from the July 13, 2010 hearing.
I. BACKGROUND
{¶2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of
Appeals, this matter was referred to a magistrate. The magistrate issued detailed
findings of fact and conclusions of law which is appended to this decision. (Attached as
an Appendix).
{¶3} Relator and respondents, the commission and the Department of
Rehabilitation and Correction ("ODRC"), all filed objections to the magistrate's decision.
The case is now before the court for a full, independent review. For ease of discussion,
we provide a brief recitation of the relevant facts to this decision.
{¶4} Relator has two industrial claims arising from his employment with
ODRC. After an SHO granted relator's request for PTD compensation, the employer
requested the commission reconsider of the SHO's order contending that the SHO relied
on Dr. Manuel's November 12, 2008 and January 14, 2009 reports, but the doctor's
January 7, 2009 office notes were inconsistent with those reports.
{¶5} After reconsideration was requested, relator's doctor, Dr. Manuel, sent the
commission a letter dated June 29, 2010 stating that the activity restrictions as
discussed in his November 12, 2008 report are accurate and his office notes of
January 7, 2009 constituted a continuation of outdated activity restrictions and did not
reflect the changes made on November 12, 2008. The error was not noted until relator
had a follow-up office visit on March 4, 2009, and the activity restrictions were
corrected. The commission excluded the doctor's note finding it was untimely filed.
{¶6} The commission held a hearing with only two commissioners present. The
commission vacated the SHO's order and denied relator's application for PTD
compensation. The absent commissioner wrote on the commission order that he had
discussed the matter with an SHO who had been present during the hearing, and the
SHO summarized the testimony, evidence and arguments presented at the hearing.
No. 12AP-804 3
After the discussion and a review of all the evidence in the claim file, the absent
commissioner voted to grant continuing jurisdiction and deny the PTD application.
{¶7} Subsequently, the commission mailed an order declaring an overpayment
of PTD compensation and indicated that the overpayment would be collected as a
percentage of future awards. On administrative appeal, an SHO issued an order finding
that relator received the compensation benefits in good faith and no fraud was involved.
The SHO determined that since R.C. 4123.511 provides for recollection according to the
method set forth in R.C. 4123.511(K) only after final administrative determination of an
appeal, and does not provide for reconsideration, the overpayment should be charged to
the statutory surplus fund.
{¶8} The administrator of the bureau and the employer filed appeals/requests
for reconsideration. Relator filed a motion to dismiss the appeals. The commission
exercised continuing jurisdiction and found a mistake of law and error by a subordinate
hearing officer by charging the overpayment to the surplus fund. After a hearing, the
commission found the SHO erred when he ordered a reimbursement of the
overpayment from the surplus fund. The commission vacated the SHO order and
ordered the overpayment to be collected from relator pursuant to R.C. 4123.511(K).
Relator then filed this original action seeking a writ of mandamus.
{¶9} The matter was referred to a magistrate who found that the commission
had continuing jurisdiction and the vote of the commissioner who was absent from the
hearing deprived relator of due process of law with respect to that portion of the
commission's order that determined on the merits relator's application for PTD
compensation. However, the magistrate decided that the missing commissioner did not
violate relator's due process rights regarding the commission's determination that the
SHO order contained a clear mistake of law because the determination of a clear
mistake of law did not rest upon witness credibility at the hearing. The magistrate
decided the court should issue a writ of mandamus ordering further administrative
proceedings to redetermine the merits of relator's application for PTD and the issue of
overpayment.
No. 12AP-804 4
II. OBJECTIONS
{¶10} Relator filed the following four objections to the magistrate's decision:
I. RELATOR OBJECTS TO THE MAGISTRATE'S
CONCLUSION THAT THE COMMISSION PROPERLY
EXERCISED CONTINUING JURISDICTION OVER THE
FINAL ORDER DATED JANUARY 13, 2010 WHICH
AWARDED PTD COMPENSATION. RELATOR SUBMITS
THAT THE COMMISSION'S RECONSIDERATION ORDER
CONSTITUTES AN ABUSE OF DISCRETION, EXCEEDS
ITS JURISDICTION, IS CONTRARY TO LAW, SHOULD BE
VACATED, AND THE FINAL ORDER AWARDING PTD
SHOULD BE ORDERED REINSTATED.
I-A. A PHYSICIAN'S ASSESSMENT OF SOME RESIDUAL
FUNCTIONAL CAPACITY IS NOT NECESSARILY
"INCOSISTENT" WITH A FINDING OF PTD WHERE THE
PHYSICIAN SPECIFICALLY EXPLAINS THAT OTHER
INJURY RELATED INDICIA OF DISABILITY IS PRESENT
AND SUCH REASONING IS DEEMED PERSUASIVE BY
THE SHO.
I-B. (1) AN ERROR OF LAW IS NOT PRESENT WHEN "AN
INCONSISTENT MEDICAL CONCLUSION CAN BE
ATTRIBUTED TO MISTAKE, AS COMPARED TO LACK OF
KNOWLEDGE, AND …OTHER MEDICAL EVIDENCE
EXISTS FROM WHICH THE …[SHO]…COULD CONCLUDE
THE MISTAKE WAS RESOLVED" State ex rel. Chrysler
Corp. v. Indus. Comm., 81 Ohio St. 3d 158 (1998).
(2) DISAGREEMENT ON THE INTERPRETATION OF
MEDICAL EVIDENCE IS NOT A CLEAR MISTAKE OF
LAW; THE COMMISSION LACKS CONTINUING
JURISDICTION TO STRIKE EVIDENCE FROM
CONSIDERATION AS A MISTAKE OF LAW AND ABUSES
ITS DISCRETION BY REWEIGHING MEDICAL,
NEGLECTING CONTEMPORANEOUS CORRECTIONS IN
THE RECORD, AND SUBSTITUTING ITS JUDGEMENT
FOR THAT OF THE SHO.
II. RELATOR OBJECTS TO THE MAGISTRATE'S
CONCLUSION THAT THE INDUSTRIAL COMMISSION
DID NOT ABUSE ITS DISCRETION AND ERR AS A
MATTER OF LAW WHEN IT REFUSED TO CONSIDER DR.
MANUEL'S JUNE 29, 2010 STATEMENT.
No. 12AP-804 5
III. RELATOR OBJECTS TO THE MAGISTRATE'S
CONCLUSION OF LAW CONCERNING "THE ABSENT
COMMISSIONER" COMMENCING AT PAGE 22 OF HIS
DECISION: RELATOR SUBMITS THAT WHEN THE
COMMISSION HEARS A CONTINUING JURISDICTION
RECONSIDERATION REQUEST FROM A FINAL ORDER,
IT ABUSES ITS DISCRETION AND VIOLATES DUE
PROCESS PROTECTIONS WHEN A MEMBER CASTS THE
DECIDING VOTE "…IN SPITE OF THE FACT THAT SHE
[OR HE] DID NOT ATTEND THE HEARING." STATE EX
REL. EVERT V. INDUS. COMM., 10TH DIST. NO. 11AP-465,
2012-OHIO-2402 ¶ 33, APPROVED, EXPLAINED AND
FOLLOWED.
IV. RELATOR OBJECTS TO THE MAGISTRATE'S
RESOLUTION OF THE COMMISSION'S OVERPAYMENT
ORDER BECAUSE THE ORDER IS AN ABUSE OF
DISCRETION, CLEARLY CONTRARY TO LAW AND
MISCALCULATED; THE MAGISTRATE VACATES THE
ORDER IN FAVOR OF FURTHER PROCEEDINGS EVEN
THOUGH THE COMMISSION LACKS JURISDICTION, IS
ALREADY RECOUPING THE OVERPAYMENT AND THE
SHO'S DETERMINATION OF THIS ISSUE IS LEGALLY
AND FACTUALLY CORRECT.
{¶11} The commission filed the following two objections to the magistrate's
decision:
[1.] [T]he commission objects to the magistrate's finding
that the non-attending commissioner's vote violated due
process of law
[2.] [The commission objects to] the magistrate's finding
that the commission must vacate the overpayment orders.
{¶12} ODRC filed an objection to the magistrate's decision requesting "this Court
to expand its ruling and allow for an absent Commissioner to vote after a review of the
case with a Hearing Officer present where credibility [of the] witness is not an issue."
III. DISCUSSION
{¶13} After the briefs were filed in this court, the Supreme Court of Ohio decided
State ex rel. Sigler v. Lubrizol Corp., 136 Ohio St. 3d 298, 2013-Ohio-3686, which
determines three of the objections raised in this case. In their objections, relator, the
commission and ODRC all raised the issue of whether the magistrate erred in finding
No. 12AP-804 6
that relator's due process rights were violated when the commission held a hearing with
only two members present and the third commissioner voted later. Relator's contention
was the magistrate erred in finding that his due process rights were not violated when
the commission determined that the SHO order contained a clear mistake of law and
vacated the SHO's final order.
{¶14} In Sigler, the Supreme Court of Ohio determined that Sigler failed to
demonstrate that the commission's voting procedure violated due process. Sigler had
applied for PTD compensation and an SHO approved the award. This court ordered the
commission to reconsider Sigler's application and after another hearing, an SHO again
awarded Sigler PTD compensation. The employer filed a motion for reconsideration.
After a hearing with only two commissioners present, the commission granted the
motion for reconsideration to correct a clear mistake of law, vacated the award and
denied Sigler's application.
{¶15} The Supreme Court of Ohio reiterated that a commissioner is not required
to attend a PTD hearing in order to participate in the decision, citing State ex rel.
Dayton Walther Corp. v. Indus. Comm., 71 Ohio St. 3d 105, 107 (1994). The absent
commissioner may review a transcript of the hearing, but that is not the only method of
review, however, the commissioner's failure to consider any evidence from the hearing
violates the claimant's due process rights. State ex rel. Youghiogheny & Ohio Coal Co.
v. Indus. Comm., 65 Ohio St. 3d 351 (1992); State ex rel. Ormet Corp. v. Indus. Comm.,
54 Ohio St. 3d 102, 107 (1990). The Supreme Court then reviewed the Ormet decision in
which they held that the decision maker must "in some meaningful manner, consider
and appraise all the evidence to justify the decision." (Emphasis sic.) Sigler at ¶ 15. The
court had approved the use of subordinates to analyze the evidence and prepare a
summary or the absent commissioner could listen to an audiotape of the hearing and
review a summary prepared by a legal advisor and discuss with the other
commissioners. See Ormet; State ex rel. Ohio Bell Tel. Co. v. Indus. Comm., 68 Ohio
St.3d 329 (1994).
{¶16} After reviewing its previous decisions, the court held that when the absent
commissioner reviewed the claim file and talked with a longtime commission hearing
officer who summarized the testimony, evidence and arguments for him, and referenced
his handwritten notes, there was no violation of due process rights.
No. 12AP-804 7
{¶17} In this case, the absent commissioner noted on the order that:
On 08/04/2010, I discussed this matter with Cindy Albrecht
who was present at the 07/13/2010 hearing. Ms. Albrecht
summarized the testimony, evidence and arguments
presented at the hearing. After this discussion and a review
of all the evidence contained within the claim file, I vote to
grant continuing jurisdiction and deny the IC-2, Application
for Permanent Total Disability Compensation, filed
01/22/2009.
{¶18} Given that the absent commissioner reviewed all the evidence and received
an oral summary of the testimony, evidence and arguments presented at the hearing,
there is compliance with the Sigler and Ormet standard of considering the evidence in a
meaningful manner and relator has not demonstrated a violation of his due process
rights. Relator's third objection and the commission's first objection and ODRC's
objection are overruled.
{¶19} Relator also objects to the magistrate's decision regarding his conclusion
that the commission properly exercised continuing jurisdiction over the January 13,
2010 order which awarded PTD compensation. The magistrate determined that the
November 12, 2008 and January 14, 2009 reports of Dr. Manuel are not some evidence
upon which the SHO could rely to support the PTD award and such reliance upon those
reports was a clear mistake of law that provided the prerequisite for the commission's
exercise of continuing jurisdiction.
{¶20} SHOs are granted original jurisdiction to hear and decide applications for
PTD compensation. R.C. 4121.34(B)(1). There is no right to administratively appeal a
decision of an SHO awarding PTD compensation, thus the decision was a final order.
R.C. 4123.511(D) and (E). "The commission's power to reconsider a previous decision
derives from its general grant of continuing jurisdiction under R.C. 4123.52." State ex
rel. Gobich v. Indus. Comm., 103 Ohio St. 3d 585, 2004-Ohio-5990, ¶ 14, citing State ex
rel. Royal v. Indus. Comm., 95 Ohio St. 3d 97, 99 (2002). However, this power is not
unlimited and continuing jurisdiction can only be invoked when one of the following
requirements has been met: (1) new and changed circumstances, (2) fraud, (3) clear
mistake of fact, (4) clear mistake of law, or (5) error by an inferior tribunal. Gobich at
¶ 14, citing State ex rel. Nicholls v. Indus. Comm., 81 Ohio St. 3d 454, 459 (1998).
No. 12AP-804 8
{¶21} Here, the magistrate found that the January 7, 2009 office notes by Dr.
Manuel were not inconsistent with the November 12, 2008 report because they were
based upon different examinations. The January 7, 2009 office notes constituted new
and changed circumstance following the issuance of the November 12, 2008 report
because the January 7, 2009 office notes suggest a very different picture of relator's
work status. The magistrate concluded that reliance on the November 12, 2008 and the
January 14, 2009 reports was a clear mistake of law by the SHO.
{¶22} The magistrate correctly concluded that the January 7, 2009 office notes
constitute new and changed circumstances. The January 7, 2009 office notes reflect an
examination on that date and the relator's work status is different in January 2009 than
it was in November 2008. State ex rel. Conrad v. Indus. Comm., 88 Ohio St. 3d 413
(2000). The SHO was not entitled to rely on the November 2008 report and ignore the
January 7, 2009 office notes. However, the magistrate did not discuss the January 14,
2009 report which reaches the same conclusion as the November 2008 report, but is
different than the January 7, 2009 office notes. "[C]ontradictory or equivocal
statements by the same physician cannot, as a matter of law, support an award of
compensation. * * * Further, equivocation occurs when a doctor repudiates an earlier
opinion, renders contradictory or uncertain opinions, or fails to clarify an ambiguous
statement." State ex rel. Eberhardt v. Flexible Corp., 70 Ohio St. 3d 649, 656-57 (1994).
Dr. Manuel's conflicting reports create uncertainty and cannot constitute evidence upon
which the commission may grant relator's application for PTD compensation and
reliance on those reports was a clear mistake of law and the commission could properly
exercise continuing jurisdiction.
{¶23} Relator further argues that Dr. Manuel's November 12, 2008 and
January 14, 2009 reports were not simply based upon relator's diminished physical
strength alone, but also on other injury induced indicia of PTD. Relator contends the
magistrate only focused on the diminished physical strength and did not address the
rest of Dr. Manuel's findings. However, the January 7, 2009 office notes do not agree
with the November 12, 2008 and January 14, 2009 reports in more ways than the
diminished physical strength. The January 7, 2009 office notes provide, as follows:
The patient presents today for re-evaluation. The patient['s]
pain is actually only a 2.5 on a scale of 10 [and] has
No. 12AP-804 9
significantly decreased from previous pain patterns. The
patient with significant improvement with the change to
Kadian from the Avinza. Patient getting much better sleep.
The patient has just initiated an exercise program to start
losing weight. The patient after his first attempt at the
exercise program woke up stiff, but still without having
significant increase in the amount of pain. The patient is
using his TENS unit along with his medications. The patient
is currently not working. The patient is able [to] stay within
his activity restrictions on a daily basis. No other acute
complaints.
{¶24} In his November 12, 2008 letter, which is referenced in the January 14,
2009 report, Dr. Manual stated that, "Mr. Knedler's current work abilities are
significantly lessened due completely to his activity intolerance and pain management
intervention issues. * * * With regard to subjective complaints, Mr. Knedler experiences
continued numbness of both lower extremities on a daily basis. He also maintains a
constant pain level of 5 to 10 in his low back with radiation down his both legs
(left>right) (with medication on board) that increases frequently depending upon his
chosen level of physical activity. * * * Unfortunately, Mr. Knedler requires benefit of the
medications around the clock in order to tolerate even his present sedentary daily
activity." Even considering his pain and medication, there was a change between
November and January—his pain decreased from a 5-10 to a 2.5 out of 10 and his
complaints improved with a change in medication. These reports create uncertainty in
relying on them and do not constitute evidence which can be relied upon. Thus,
relator's first objection is overruled.
{¶25} Relator argues that Dr. Manuel's office notes and reports are
ambiguous statements which he clarified in his letter to the commission on June 29,
2010. Relator objects to the magistrate's decision where he found that the commission
did not abuse its discretion when it refused to consider this letter. In Eberhardt, the
court stated that:
"[A]mbiguous statements are inherently different from those
that are repudiated, contradictory or uncertain. Repudiated,
contradictory or uncertain statements reveal that the doctor is
not sure when he means and, therefore, they are inherently
unreliable. Such statements relate to the doctor's position on
a critical issue. Ambiguous statements, however, merely
reveal that the doctor did not effectively convey what he
No. 12AP-804 10
meant and, therefore, they are not inherently unreliable. Such
statements do not relate to the doctor's position but to his
communication skills."
Id. at 657.
{¶26} The commission found that Dr. Manuel's June 29, 2010 report was
untimely submitted. The commission has the discretion to accept or reject evidence
submitted after the hearing. State ex rel. Cordray v. Indus. Comm., 54 Ohio St. 3d 99,
101 (1990); State ex rel. Schlegel v. Stykemain Pontiac Buick GMC, Ltd., 120 Ohio St. 3d
43, 2008-Ohio-5303, ¶ 16. Dr. Manuel's June 29, 2010 letter does not clarify his
January 7, 2009 office notes but attempts to explain why the office notes should not be
considered at all. Thus, the commission did not abuse its discretion in refusing to admit
and consider Dr. Manuel's June 29, 2010 letter. Relator's second objection is overruled.
{¶27} Finally, in his last objection, relator argues that the commission's order
regarding overpayment is an abuse of discretion and the SHO's determination was
actually legally and factually correct. The magistrate did not determine this issue
because he decided that the commission should conduct further proceedings. Relator
contends that R.C. 4123.511(K) is not applicable to PTD benefits ordered paid following
a final R.C. 4123.35(B)(1) order in the absence of a finding of fraud because R.C.
4123.511 overpayment authority is limited to appeals. In this case, there was no appeal
from a PTD order; the overpayment resulted from the commission exercising continuing
jurisdiction. Thus, relator contends that any overpayment cannot be recouped from
relator.
{¶28} "Claimants are entitled to receive the compensation due them but are not
entitled to receive a windfall when they are paid money to which they are not entitled."
State ex rel. Murphy v. Indus. Comm., 10th Dist. App. No. 05AP-275, 2006-Ohio-1480,
¶ 26. In State ex rel. Wooten v. Indus. Comm., 104 Ohio St. 3d 186, 2004-Ohio-6505,
the Supreme Court of Ohio determined the issue on similar facts. In Wooten, the
claimant was awarded PTD compensation. The employer filed a complaint in
mandamus and this court issued a limited writ that returned the cause to the
commission for further consideration finding that the commission did not adequately
explain its decision as required by State ex rel. Noll v. Indus. Comm., 57 Ohio St. 3d 203
(1991). Upon reconsideration, the commission determined that claimant was not
No. 12AP-804 11
entitled to PTD compensation. Claimant did not appeal. The Bureau of Workers'
Compensation then determined that claimant had been overpaid and the amount was to
be repaid consistent with R.C. 4123.511(J). Claimant appealed, this court affirmed the
commission's order and the Supreme Court also affirmed. The Supreme Court
distinguished cases where the compensation was terminated after discovering payment
had been initiated or continued as the result of a bona fide mistake. When the
compensation was stopped because the order awarding it was reversed on
administrative reconsideration, R.C. 4123.511(K) was applicable.
{¶29} Following the Supreme Court precedent, we find the commission did not
err in its November 8, 2010 order declaring an overpayment ($39,537.90) and ordering
recovery pursuant to R.C. 4123.511. Relator's fourth objection is overruled.
{¶30} The commission also objected to the magistrate's decision arguing that
the magistrate erred in finding that the commission must vacate the overpayment
orders. Based on our ruling on the objections regarding the absent commissioner and
relator's objection regarding the overpayment order, this objection is sustained.
IV. CONCLUSION
{¶31} In conclusion, after review of the magistrate's decision, an independent
review of the record pursuant to Civ.R. 53, and due consideration of all the objections,
we find that the magistrate has properly determined the pertinent facts, and adopt them
as our own. Relator's four objections are overruled, the commission's objections are
sustained and ODRC's objection is sustained. For the reasons set forth in this decision,
however, we do not adopt the magistrate's conclusions of law and deny the requested
writ of mandamus.
Objections sustained in part and overruled in part;
writ of mandamus denied.
DORRIAN and O'GRADY, JJ., concur.
T. BRYANT, J., retired, of the Third Appellate District,
assigned to active duty under authority of Ohio Constitution,
Article IV, Section 6(C).
No. 12AP-804 12
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Charles W. Knedler, :
Relator, :
No. 12AP-804
v. :
(REGULAR CALENDAR)
Industrial Commission of Ohio, :
and Department of Rehabilitation
and Correction - Pickaway Correctional :
Institute,
:
Respondents.
:
MAGISTRATE'S DECISION
Rendered on July 16, 2013
Copp Law Offices, and Shawn M. Wollam, for relator.
Michael DeWine, Attorney General, and John Smart, for
respondent Industrial Commission of Ohio.
Wiles Boyle Burkholder & Bringardner, and J. Miles Gibson,
for respondent Department of Rehabilitation & Correction -
Pickaway.
IN MANDAMUS
{¶32} In this original action, relator, Charles W. Knedler, requests a writ of
mandamus ordering respondent Industrial Commission of Ohio ("commission") to
vacate its July 13, 2010 order that exercised continuing jurisdiction over a January 13,
2010 order of its staff hearing officer ("SHO") awarding relator permanent total
disability ("PTD") compensation starting November 12, 2008, and to enter an order
No. 12AP-804 13
reinstating the January 13, 2010 SHO's order. In the alternative, because one of the
commissioners was absent from the July 13, 2010 hearing, relator requests that the writ
order the commission to vacate that portion of its July 13, 2010 order that determined
that relator is able to perform sustained remunerative employment, and to conduct a
new hearing on the merits of the PTD application at which all three commissioners are
present.
Findings of Fact:
{¶33} 1. Relator has two industrial claims arising from his employment with
respondent Ohio Department of Rehabilitation and Correction ("ODRC") at the
Pickaway Correctional Institution ("PCI") as a farm coordinator/corrections officer.
{¶34} 2. On June 1, 2003, a cow kicked relator in the arm. The industrial claim
(No. 03-367229) is allowed for: "sprain left elbow/forearm; hyperextension of arm."
{¶35} 3. On March 17, 2005, relator slipped on cow manure and fell, injuring his
back and shoulder. The industrial claim (No. 05-325083) is allowed for:
Sprain thoracic region; contusion of back; sprain sacroiliac;
sprain right shoulder; sacral coccygeal contusion;
lumbosacral sprain/strain; L5-S1 herniated disc; post lumbar
laminectomy syndrome; thoracic neuritis; lumbosacral
neuritis; thoracic radiculitis; lumbosacral radiculitis;
aggravation of pre-existing major depression.
{¶36} 4. In June 2005, relator underwent a left L5-S1 laminectomy with
discectomy. The surgery was performed by Mark Hnilica, M.D.
{¶37} 5. In October 2006, Dr. Hnilica performed an L3-4, L4-5, L5-S1
laminectomy and medial facetectomy and foraminotomies with intervertebral cage.
{¶38} 6. On March 18, 2008, relator was examined by attending physician
Timothy Manuel, M.D., who practiced at the Fayette County Memorial Hospital. Dr.
Manuel's office note of that date states:
HISTORY: Patient presents today pain is a 4 to 5/10 in the
low back area continuous. Does have radiation down into
both legs. Patient has added a TENS unit to the treatment
plan and using it during the daytime noting some mild
modulation of the pain. Is still working on where the patches
go and which type patches are going to be most effective for
him. Patient is using Lidoderm patch at night also with mild
relief. Patient is using Vicodin, stating it just takes the edge
off. He is using Lyrica three times a day and Flexeril at
No. 12AP-804 14
bedtime and finding that it brings the pain down to a
tolerable level. Patient is having some shoulder stiffness at
this time. Patient is having a difficult time sleeping on the
right side because of the shoulder stiffness. Patient has not
developed any new radicular symptoms, or other acute
complaints.
***
TREATMENT PLAN: Treatment plan at this time, will
change the patient's narcotic management at this time from
the pulse management with the Vicodin and switch to Avinza
which is for long continuous pain relief with the 24-hour
release medication. Otherwise, we will keep the patient's
medications as they have been. This patient is getting fairly
good management with this. Patient at this time is over a
year out from his last surgery. Therefore, we will obtain a
functional capacity exam to see exactly what the patient's
work capabilities are at this time and will also request
vocational rehabilitation to help us with returning patient
back to the work force. No other changes in the patient's
treatment plan at this time.
{¶39} 7. On November 12, 2008, at relator's request, Dr. Manuel wrote a two-
page letter or report stating:
RE: Long term treatment/activity plan for Charles W.
Knedler
BWC Claim # 05-325083
Date of Injury: 3-17-05
Dear Mr. Knedler:
I am in receipt of your request for insight into a projected
long-term treatment plan taking into consideration the
nature and severity of physical impairment for injured
worker Charles W. Knedler, as it pertains to his BWC injury
as referenced above. At your request I have reviewed Mr.
Knedler's chart and have found the following to be true:
1) Mr. Knedler has been treated throughout the majority of
his injury history by myself and his neurosurgeon Dr. Mark
Hnilica (along with other pain management physicians) for
the following diagnoses: 847.1 Thoracic Sprain/Strain;
922.31 Contustion [sic] Back; 846.1 Sacroiliac Sprain/Strain;
922.32 Buttock Contusion; 840.9 Right Shoulder
Sprain/Strain; 846.0 Lumbosacral Sprain/Strain; 722.83
No. 12AP-804 15
Post Laminectomy Syndrome (Lumbar); 724.4 Lumbosacral
Neuritis; 724.4 Lumbosacral Radiculitis; 722.10 HNP L5-S1;
724.4 Thoracic Sprain/Strain and 724.4 Thoracic Radiculitis.
2) During the treatment period referenced above, Mr.
Knedler has undergone a laminectomy/discectomy dated 6-
23-05, a fusion/cage dated 10-12-06 (for failed
laminectomy), and epidural steroid injections. Mr. Knedler
has also participated in physical therapy treatment plans,
numerous prescription medication treatment plans and
currently utilizes a TENS unit for added pain management.
Having completed this aggressive intervention and treatment
plan, Mr. Knedler remains without significant improvement
of his ability to perform his usual daily activities. Mr.
Knedler's physical abilities related to what he would be able
to perform in an eight-hour work day are considerably less
than what is generally determined to be a sedentary level of
duty. I realize that Mr. Knedler's previous Functional
Capacity Examination (FCE) rates his abilities at the
moderate work level; however Mr. Knedler's current work
abilities are significantly lessened due completely to his
activity intolerance and pain management intervention
issues. The rationale behind this is twofold. Mr. Knedler's
objective physical findings post-surgery include:
1) a slow deliberate ataxic, antalgic gait;
2) unable to stand for any significant period of time with
limited ambulation for very short periods of time (patient
requires frequent position changes secondary to constant
pain);
3) radicular pain of both lower extremities with the left leg
greater than the right.
With regard to subjective complaints, Mr. Knedler
experiences continued numbness of both lower extremities
on a daily basis. He also maintains a constant pain level of 5
of 10 in his low back with radiation down his both legs
(left>right) (with medication on board) that increases
frequently depending upon his chosen level of physical
activity. This continued level of pain even at rest, along with
the fact that his only remaining avenue of pain relief
available has been (and will continue to be) only moderately
successful, in the form of narcotic analgesics and
neuropathic pain management medications that both can be
moderately to heavily sedating as well as utilization of TENS
unit for a limited period of the day. Unfortunately Mr.
No. 12AP-804 16
Knedler requires benefit of the medications around the clock
in order to tolerate even his present sedentary daily activity.
The constant presence of these medications on board
severely limits Mr. Knedler's ability to participate in any
activity requiring prolonged periods of mental and physical
alertness, as he requires intermittent periods of rest
throughout the course of a day in order to overcome the
sedative effects of the medication.
Taking into consideration all of the above information, it is
with a reasonable degree of medical probability that I feel
that Mr. Knedler is not capable of performing even up to a
sedentary level of employment on any kind of routine
schedule. I certainly believe that this restriction will remain
in place in the extended future as well, as Mr. Knedler has
reached Maximum Medical Improvement for this injury as of
6-3-08; meaning all possible avenues of intervention and
treatment having been utilized previously with limited to no
success, leaving continued narcotic prescription medication
therapy as the only remaining avenue of pain management
available to Mr. Knedler.
{¶40} 8. On January 7, 2009, relator was examined by Dr. Manuel. The office
note states:
HISTORY: The patient presents today for re-evaluation.
The patient['s] pain is actually only a 2.5 on a scale of 10
[and] has significantly decreased from previous pain
patterns. The patient with significant improvement with the
change to Kadian from the Avinza. Patient getting much
better sleep. The patient has just initiated an exercise
program to start losing weight. The patient after his first
attempt at the exercise program woke up stiff, but still
without having significant increase in the amount of pain.
The patient is using his TENS unit along with his
medications. The patient is currently not working. The
patient is able [to] stay within his activity restrictions on a
daily basis. No other acute complaints.
***
TREATMENT PLAN: At this time the change to the
narcotic with Kadian has done very well for the patient. We
will continue the patient's activity restrictions. The patient
treatment considerations as recommended by Dr.
Bhattacharya was for possibility of an implanted electric
stimulator. At this time, the patient would like to still
No. 12AP-804 17
consider that but does not wish to go to that option this
month. The patient [sic] otherwise the recommendations by
Dr. Bhattacharya will continue to reference as the patient
proceeds through the treatment plan. Patient at this time
biggest hurdle is going to be the weight loss program but
now the patient's decreased pain he does feel that he can
increase his activity and may be able to start dropping weight
and increasing his strength and flexibility. We will continue
to encourage the patient as he goes through that.
ACTIVITY RESTRICTIONS: Lifting, pushing, and pulling
of 50 pounds maximum. Only occasional over the shoulder
work and only occasional kneeling and squatting. Continue
to use the TENS unit. Prescriptions for Flexeril, Lyrica
Vicodin and Kadian.
{¶41} 9. On January 14, 2009, Dr. Manuel completed a preprinted form
captioned "Physician's Report for Industrial Commission of Ohio." Presumably, the
form was prepared by relator's counsel. The form states:
RE: Charles Knedler
BWC Claim Number: 05-325083
Date of Injury: 3-17-05
D.O.B.: 9-23-78
Allowed Conditions: 847.0 Sprain Thoracic Region; 922.31
Contusion of Back; 846.1 Sprain sacroiliac; 922.32
Contusion of buttock; 840.9 Sprain right shoulder and arm;
846.0 Sprain lumbosacral; 722.10 L5-S1 herniated disc;
722.83 Post lumbar laminectomy syndrome; 724.4 Thoracic
neuritis; 724.4 Lumbosacral neuritis; 724.4 Thoracic
radiculitis; 724.4 Lumbosacral radiculitis[.]
"Based on the allowed conditions in this industrial claim,
only, it is my opinion that the claimant, Charles Knedler, is
(or) is not (circle one) permanently and totally disabled from
employment."
{¶42} On the form, Dr. Manuel circled the word "is" to indicate that relator is
permanently and totally disabled. In the space provided, Dr. Manuel wrote: "Again see
letter from 11/12/08."
{¶43} 10. On March 4, 2009, relator was again examined by Dr. Manuel. The
office note states:
No. 12AP-804 18
HISTORY: The patient presents today for re-evaluation.
The patient's pain is only a 3 on a scale of 10. The patient
does get radiation into the hips and lateral legs, especially
when he is out walking, more of a numbness than a true
pain. The patient's pain has been much better controlled on
the new combination of medicines with the Kadian twice a
day, Lyrica three times a day, and utilizing Flexeril at
bedtime. The patient does occasionally use a Vicodin for days
with worse pain, but overall the pain has been much better
controlled with this current combination of medications.
***
TREATMENT PLAN: At this time, the patient is doing
much better with the current medications. We will continue
these medications. The patient still with these medications is
unable to work even a sedentary position, therefore, the
patient will need to remain off work.
{¶44} 11. Earlier, on January 22, 2009, relator filed an application for PTD
compensation. In support, relator submitted the November 12, 2008 and January 14,
2009 reports of Dr. Manuel.
{¶45} 12. On February 10, 2009, at the employer's request, relator was
examined by Kelly E. Lindsay, M.D. Dr. Lindsay examined for all of the allowed
physical conditions of the two industrial claims. In her eight-page narrative report, Dr.
Lindsay opines:
This gentleman would be capable of performing
remunerative employment if it was sedentary. He has a
sitting tolerance of 1 to 1-1/2 hours, standing tolerance of 20-
25 minutes and walking tolerance of 15-20 minutes. As long
as Mr. Knedler is at a sedentary job with the ability to change
positions frequently, he would be able to perform some sort
of remunerative employment. He would not be able to kneel,
twist, turn, bend, lift to his chest or over his head. He would
be able to perform tactile work in front of him. If he is
seated, which he should be for the majority of his potential
work, he would need to be in a supportive ergonomic chair.
***
In my medical opinion, this gentleman is not permanently
and totally disabled form any work. He would not be able to
return to his former position of employment but he would be
No. 12AP-804 19
able to perform sedentary type of work. His restrictions
would be as I stated above.
{¶46} 13. At the employer's request, vocational specialist Brett J. Heath, CVE,
CDMS, issued a ten-page "Employability Assessment Report," dated March 4, 2009.
{¶47} 14. On April 1, 2009, relator was again examined by Dr. Manuel. The
office note expresses disagreement with the February 10, 2009 report of Dr. Lindsay
without specifically identifying Dr. Lindsay's report:
HISTORY: The patient presents today for scheduled
reevaluation. The patient's pain is a 4 to 5 on a scale of 10.
The patient's pain is primary in the lumbar spine area,
radiating into both legs. The patient does have more
increased pain when he first wakes up in the morning at 6-
1/2 on a scale of 10, but, as he becomes active, the pain does
decrease somewhat. The patient is sleeping much better now
that he has been switched to the Kadian twice a day. Patient's
medications with Kadian, Flexeril, and Lyrica through the
day with Vicodin at night to help, the patient has been doing
better with his pain. The patient had used the TENS unit to
try and see if that helped modulate the pain and used it for
two weeks and found that it gave him no benefit. The patient
has had a recent independent medical examination done in
reference to his permanent disability and that is discussed
below. The patient has no other acute complaints.
***
TREAMENT PLAN: At this time, patient will continue the
medication that he has been on as recommended by the pain
specialist. Although the patient's pain is only brought down
to a 5 at best during the day, this is still an improvement. The
patient's TENS unit did not end up benefiting the patient and
will drop that from the patient's treatment. The patient did
have an independent medical examination for determination
of permanent total disability. I do disagree somewhat with
the findings of the examiner; the examiner finding that the
patient would be able to work in a sedentary environment,
but with a sitting tolerance of less than an hour, with a
standing tolerance of 20 minutes, walking tolerance of only
15 minutes, and to get to that point, the patient requiring
fairly heavy narcotics to be able to get to that point would
make it dangerous for the patient to be able to drive himself
to and from to be able to work underneath these medications
with very difficult time with the patient not being able to lift
or carry any significant weight, whatsoever, I do not feel the
No. 12AP-804 20
patient is employable without risk to himself or others and
would disagree that the patient would be able to return to
any functional work environment. Otherwise, we will be
keeping the patient off work at this time and refilling his
medications. We will plan to follow up the patient in one
month to be able to address any new concerns. Hopefully,
will be able to start expanding out the visits to a quarterly
basis once the patient is stabilized on the new medications.
ACTIVITY RESTRICTIONS: Off work. Refill of
prescriptions for Kadian, Vicodin, Lyrica, and Flexeril.
(Emphasis sic.)
{¶48} 15. On April 26, 2009, at the commission's request, relator was examined
by Kenneth A. Writesel, D.O., who examined for all the allowed physical conditions of
the two industrial claims. In his six-page narrative report, Dr. Writesel opines:
Please see completed Physical Strength Rating form
attached. In my opinion, Mr. Knedler is capable working in a
light-work capacity. In my opinion, he is most definitely not
permanently and totally disabled.
{¶49} 16. Dr. Writesel completed the Physical Strength Rating form. On the
form, Dr. Writesel indicated by his mark that relator is capable of light work.
{¶50} 17. Following an August 13, 2009 hearing, an SHO issued an order
additionally allowing claim number 05-325083 for "aggravation of pre-existing major
depression."
{¶51} 18. On October 10, 2009, at the commission's request, relator was
examined by clinical psychologist Norman L. Berg, Ph.D. Thereafter, Dr. Berg issued an
eight-page narrative report.
{¶52} 19. On October 10, 2009, Dr. Berg completed a form captioned
"Occupational Activity Assessment Mental & Behavioral Examination." On the form,
Dr. Berg indicated by his mark: "This injured work is capable of work with the
limitation(s) / modification (s) noted below:" In the space provided, Dr. Berg specified
his limitations.
{¶53} 20. Following a January 13, 2010 hearing, an SHO mailed an order on
March 2, 2010 awarding PTD compensation starting November 12, 2008:
No. 12AP-804 21
Permanent and total disability compensation is awarded
from 11/12/2008 for the reason that the 11/12/2008 report
of Dr. Manuel is the earliest supporting medical evidence.
***
Based upon the report of Dr. Manuel, it is found that the
[I]njured Worker is unable to perform any sustained
remunerative employment solely as a result of the medical
impairment caused by the allowed conditions. Therefore,
pursuant to State ex rel. Speelman v. Indus. Comm. (1992)
73 Ohio App. 3d 757, it is not necessary to discuss or analyze
the Injured Worker's non-medical disability factors.
In statements dated 11/12/2008 and 01/14/2009 Dr. Manuel
finds the Injured Worker permanently and totally disabled.
He finds that the Injured Worker has continued numbness in
both lower extremities on a daily basis with a constant pain
level of 5 out of 10. His only relief is narcotic medication and
neuropathic pain medication. Both of those types of
medication can be very sedating. He can also utilize a TENS
unit for a part of the day. The Injured Worker needs these
medications around the clock to even perform activities of
daily living. Because of the medication he would have to have
rest breaks during the day. He goes on to find the Injured
Worker as "not capable of performing even up to a sedentary
level of employment on any kind of routine schedule."
Since the finding of permanent total disability is being made
based only on the report of Dr. Manuel, there is no
discussion of the non-medical disability factors.
{¶54} 21. On March 19, 2010, the employer requested commission
reconsideration of the SHO's order of January 13, 2010 (mailed March 2, 2010).
{¶55} 22. On May 4, 2010, the three-member commission, on a two-to-one vote,
mailed an interlocutory order:
The Employer's request for reconsideration, filed
03/19/2010, from the Staff Hearing Officer order, issued
03/02/2010, is referred to the Commission Level Hearings
Section to be docketed before the Members of the Industrial
Commission. The issues to be heard are:
1. The Employer's request for the Industrial Commission to
invoke its continuing jurisdiction pursuant to R.C. 4123.52,
and
No. 12AP-804 22
2. Issue:
1) Continuing Jurisdiction pursuant To R.C. 4123.52
2) Permanent Total Disability
It is the finding of the Industrial Commission that the
Employer has presented evidence of sufficient probative
value to warrant adjudication of the request for
reconsideration regarding the alleged presence of a clear
mistake of fact in the order from which reconsideration is
sought, and a clear mistake of law of such character that
remedial action would clearly follow.
Specifically, it is alleged that medical reports of Timothy
[Manual], M.D., are inconsistent with his office notes, which
indicate the Injured Worker is capable of working with
restrictions.
Based on these findings, the Industrial Commission directs
that the Employer's request for reconsideration, filed
03/19/2010, is to be set for hearing to determine whether
the alleged mistakes of fact and law as noted herein are
sufficient for the Industrial Commission to invoke its
continuing jurisdiction.
In the interest of administrative economy and for the
convenience of the parties, after the hearing on the question
of continuing jurisdiction, the Industrial Commission will
take the matter under advisement and proceed to hear the
merits of the underlying issue(s).
{¶56} 23. On June 29, 2010, Dr. Manuel wrote:
I would first like to apologize to the Industrial Commission
for the delay in this documentation. I am no longer employed
at Fayette Memorial Hospital Department of Business
Health. I am also no longer the physician of record for this
patient.
I would first like to address the issue of the activity
restrictions on this patient. The activity restrictions are
discussed in my report of November 12, 2008 are the
accurate activity restrictions for this patient. In my
documentation on the patient visit of January 7, 2009 an
error was made of continuing outdated activity restrictions
for the patient and did not reflect the changes made on
November 12, 2008. This error was not noted until the
patient's follow-up visit of March 4, 2009. At that time the
activity restrictions were corrected to the appropriate
No. 12AP-804 23
restrictions. An oversight was made in the documentation of
that date not to make note that the previous activity
restrictions had been listed in error.
I would now like to address the issue of the sedation caused
by the patient's need for high dose narcotics. With the level
of narcotics the patient may at some point develop
acclamation to these medications, but with the level of
medications it is to be expected that the patient will have
some degree of sedation which will adversely affect his daily
activities and his ability to work. It is not conceivable to place
this patient back to full work status or even a partial work
status with this level of narcotics and other medications.
{¶57} 24. On July 13, 2010, two members of the three-member commission
heard the employer's request for reconsideration as well as the merits of the PTD
application. Commissioner Kevin R. Abrams was not present at the July 13, 2010
hearing.
{¶58} On August 4, 2010, the commission had further review and discussion.
{¶59} On September 15, 2010, the commission mailed an order that exercises
continuing jurisdiction over the SHO's order of January 13, 2010 (mailed March 2,
2010) and vacates the SHO's order on grounds that it contains a clear mistake of law.
Also, the commission's order mailed September 15, 2010 addresses the merits of the
PTD application and denies the application.
{¶60} Chairperson Gary DiCeglio voted "no." Commissioner Jodi M. Taylor
voted "yes."
{¶61} The commission's order, mailed September 15, 2010 explains:
08/04/2010 - After further review and discussion, it is the
finding of the Industrial Commission that the Employer has
met its burden of proving that the Staff Hearing Officer
order, issued 03/02/2010, contains a clear mistake of law of
such character that remedial action would clearly follow.
Specifically, the Staff Hearing Officer order was improperly
based upon two reports from Timothy Manu[e]l, M.D., dated
11/12/2008 and 01/14/2009. These reports were
inconsistent with Dr. Manu[e]l's progress note, dated
01/07/2009, wherein Dr. Manu[e]l opined the Injured
Worker could lift, push, and pull up to fifty (50) pounds. As
such, the reports are not some evidence upon which an
award of permanent total disability compensation may be
based. See State ex rel. Genuine Parts Co. v. Indus. Comm.,
No. 12AP-804 24
160 Ohio App. 3d 99, 2005-Ohio-1447. Although Dr.
Manu[e]l submitted a clarifying report, dated 06/29/2010,
the report was not timely filed pursuant to Ohio Adm.Code
4121-3-34(C) (4) (a) and (d). Therefore, the Commission
exercises continuing jurisdiction pursuant to R.C. 4123.52
and State ex rel. Nicholls v. Indus. Comm. (1998), 81 Ohio
St.3d 454, State ex rel. Foster v. Indus. Comm. (1999), 85
Ohio St. 3d 320, and State ex rel. Gobich v. Indus. Comm.,
103 Ohio St. 3d 585, 2004-Ohio-5990, in order to correct this
error. The Employer's request for reconsideration, filed
03/19/2010, is granted. It is further ordered that the Staff
Hearing Officer order, issued 03/02/2010, is vacated.
It is the order of the Commission that the Injured Worker's
IC-2 Application for Permanent Total Disability
Compensation, filed 01/22/2009, is denied.
The Injured Worker sustained two work injuries while
employed by the Employer of record. The first injury, to the
left elbow, did not require surgical intervention. The second
injury was much more severe, as evidenced by the claim
allowances noted above. The Injured Worker underwent a
lumbar laminectomy in 2005 and lumbar fusion in 2006.
Current treatment is directed toward pain management
through the use of prescription medication, a TENS unit and
injections. For the allowed psychological condition, the
Injured Worker has undergone psychotherapy and utilizes
prescription medication.
The Commission finds the allowed conditions from Claim
number 05-325083 and Claim Number 03-367229 restrict
the Injured Worker to light duty work with moderate
psychological limitations. This finding is based upon the
examination report from Kenneth Writesel, D.O., dated
04/26/2009, and the examination report from Norman
Berg, Ph.D., dated 10/10/2009. Dr. Writesel opined the
Injured Worker remains capable of up to light duty work. Dr.
Berg enumerated a number of moderate psychological
limitations including: ability to maintain attention and
concentration in a work setting; ability to relate adequately
with others in a work setting; and ability to cope with routine
job stress.
The Injured Worker is 36 years old; a younger person whose
age is a significant vocational asset. The Injured Worker is a
high school graduate. The Injured Worker testified at
hearing that he can read, write, do basic math, and perform
No. 12AP-804 25
common computer operations (email, [F]acebook, and
[E]bay). The Injured Worker's education is a vocational
asset.
The Injured Worker has worked as a correctional farm
coordinator, press operator, sorter, warehouse worker,
construction worker, fast food worker, and farmer. As a
construction worker (roofer) and warehouse worker (forklift
operator), the Injured Worker rose to the level of team
leader. The Injured Worker supervised inmates at his former
position of employment as a correctional farm coordinator.
Brett Heath, CVE, CDMS, performed a vocational
assessment on 03/04/2009. Mr. Heath classified the Injured
Worker's correctional farm coordinator position as a skilled,
medium strength job. The press operator, sorter, and
warehouse positions were classified unskilled and medium
strength, with the exception of press operator, which was
light work.
Mr. Heath identified numerous transferable job skills: plant
cultivating, press forging, stock checking, plant farm crops,
production services, directing, controlling or planning
activities for others, performing repetitive or short cycle
work, attaining precise set limits, tolerances and standards,
working under specific instructions, dealing with people, and
making judgments and decisions. Mr. Heath concluded the
Injured Worker is qualified for numerous assembly and
machine operator positions, which Mr. Heath specifically
enumerated. The Commission, therefore, finds the Injured
Worker's work experience is a vocational asset.
Accordingly, the Commission finds the Injured Worker is
vocationally qualified to perform light duty work consistent
with the psychological limitations noted by Dr. Berg. The
Injured Worker remains capable of sustained remunerative
employment and the application for permanent total
disability is denied.
{¶62} 25. On the July 13, 2010 commission order, above his signature, Abrams
explains:
On 08/04/2010, I discussed this mater with Cindy Albrecht,
who was present at the 07/13/2010 hearing. Ms. Albrecht
summarized the testimony, evidence and arguments
presented at hearing. After this discussion and a review of all
the evidence contained within the claim file, I vote to grant
No. 12AP-804 26
continuing jurisdiction and deny the IC-2, Application for
Permanent Total Disability Compensation, filed
01/22/2009.
{¶63} 26. On November 8, 2010, the Ohio Bureau of Workers' Compensation
("bureau") mailed an order declaring an overpayment of PTD compensation starting
November 12, 2008. $39,537.90 was stated to be the overpayment amount. The order
further indicates that the overpayment will be collected as a percent of future awards.
{¶64} 27. Relator administratively appealed the November 8, 2010 bureau
order.
{¶65} 28. Following a March 3, 2011 hearing, an SHO issued an order finding
that relator received the compensation payments in good faith and is therefore entitled
to keep the payments for the period November 12, 2008 through August 4, 2010, the
date of the commission vote on the PTD application. The SHO further found that the
overpayment beginning August 4, 2010 should be charged to the statutory surplus fund.
{¶66} 29. Both the employer and the bureau requested reconsideration of the
SHO's order of March 3, 2011.
{¶67} 30. On June 14, 2011, the three-member commission mailed an
interlocutory order stating:
It is the finding of the Industrial Commission that the BWC
and Employer have presented evidence of sufficient
probative value to warrant adjudication of the request for
reconsideration regarding the alleged presence of a clear
mistake of law of such character that remedial action would
clearly follow, and an error by the subordinate hearing
officer in the findings issued on 04/22/2011, which renders
the order defective.
Specifically, it is alleged that the Staff Hearing Officer
misapplied R.C. 4123.511 and R.C. 4123.512 by charging to
the surplus fund an overpayment of Permanent Total
Disability resulting from the Commission's reversal of a Staff
Hearing Officer's decision to grant the award.
Based on these findings, the Industrial Commission directs
that the BWC's request for reconsideration, filed 04/27/2011
and the Employer's request for reconsideration, filed
05/09/2011, are to be set for hearing to determine whether
the alleged mistake of law and error by subordinate hearing
No. 12AP-804 27
officer as noted herein are sufficient for the Industrial
Commission to invoke its continuing jurisdiction.
{¶68} 31. Following an August 2, 2011 hearing, the three-member commission
issued an order exercising continuing jurisdiction over the SHO's order of March 3, 2011
and vacating that order. The commission determined that the entire overpayment of
$39,537.90 must be recouped pursuant to R.C. 4123.511(K).
{¶69} 32. On September 14, 2012, relator, Charles W. Knedler, filed this
mandamus action.
Conclusions of Law:
{¶70} Two main issues are presented: (1) did the commission have continuing
jurisdiction over the January 13, 2010 order of the SHO who awarded PTD
compensation, and (2) did the vote of commissioner Abrams, who was absent from the
July 13, 2010 hearing, deprive relator of due process of law under State ex rel. Ormet
Corp. v. Indus. Comm., 54 Ohio St. 3d 102 (1990).
{¶71} The magistrate finds: (1) the commission had continuing jurisdiction over
the January 13, 2010 order of the SHO, and (2) the vote of commissioner Abrams, who
was absent from the July 13, 2010 hearing, deprived relator of due process of law.
{¶72} Accordingly, it is the magistrate's decision that this court issue a writ of
mandamus, as more fully explained below.
The First Issue - Continuing Jurisdiction
{¶73} The reports of Dr. Manuel are the focus of the first issue. Citing State ex
rel. Genuine Parts Co. v. Indus. Comm., 160 Ohio App. 3d 99, 2005-Ohio-1447 (10th
Dist.), the commission found that the November 12, 2008 and January 14, 2009 reports
of Dr. Manuel, upon which the SHO exclusively relied, were inconsistent with Dr.
Manuel's January 7, 2009 report. Given the commission's citation to Genuine Parts, the
magistrate sets forth some basic law explaining the Genuine Parts rationale.
{¶74} The Supreme Court of Ohio has held that a medical report can be so
internally inconsistent that it cannot constitute some evidence supporting a commission
decision. State ex rel. Lopez v. Indus. Comm., 69 Ohio St. 3d 445 (1994). By extension,
the court held in State ex rel. M. Weingold & Co. v. Indus. Comm., 97 Ohio St. 3d 44,
No. 12AP-804 28
2002-Ohio-5353, that substantial inconsistencies between two C-84s generated by the
same examination compel the same result as in Lopez.
{¶75} This court followed the M. Weingold rationale in Genuine Parts, wherein
this court states:
Contrary to the respondent's contention, Dr. Snell's C-84 is
not evidence upon which the commission could rely because
the C-84 is inconsistent with Dr. Snell's examination notes.
Recognizing this inconsistency does not require the weighing
of evidence as respondent argues. We give no greater weight
to either the C-84 or the examination notes. We simply find,
as did the magistrate, that they relate to the same
examination and that they are inconsistent. The fact that the
inconsistency arises from statements contained in two
different documents rather than in one report is not
significant. Again, it is clear that both documents were
prepared by Dr. Snell and relate to the same physical
examinations. As the magistrate notes, the same rationale
was applied in State ex rel. M. Weingold & Co. v. Indus.
Comm., 97 Ohio St. 3d 44, 2002-Ohio-5353, which involved
substantial inconsistencies between two C-84s arising from
the same examination.
Id. at ¶ 4.
{¶76} In Genuine Parts, Dr. Snell certified the allowed lumbosacral sprain as the
cause of TTD when his office notes failed to mention a lumbosacral sprain but did
discuss serious disallowed and non-allowed conditions.
{¶77} In turn, the magistrate sets forth some basic law regarding final orders and
the commission's continuing jurisdiction under R.C. 4123.52 is in order.
{¶78} By statute, SHOs are granted original jurisdiction to hear and decide
applications for PTD awards. R.C. 4121.34(B)(1). There is no right to administratively
appeal a decision of an SHO awarding PTD compensation. R.C. 4123.511(D) and (E).
See Industrial Commission Resolution No. R05-1-02 (effective September 1, 2005) and
No. R95-1-03 (effective March 21, 1995).
{¶79} Thus, the SHO's order of January 13, 2010 at issue here was a final
commission order as of the time of its issuance.
{¶80} The commission's power to reconsider a previous decision derives from its
general grant of continuing jurisdiction under R.C. 4123.52. State ex rel. Gobich v.
No. 12AP-804 29
Indus. Comm., 103 Ohio St. 3d 585, 2004-Ohio-5990, ¶ 14. This authority is not
unlimited. Its prerequisites are: (1) new and changed circumstances; (2) fraud; (3)
clear mistake of fact; (4) clear mistake of law; or (5) error by an inferior tribunal. Id.
{¶81} As noted by the commission in its order, the January 7, 2009 report of Dr.
Manuel provides for "activity restrictions" which are stated to be "[l]ifting, pushing, and
pulling of 50 pounds maximum." This activity restriction was found to be inconsistent
with the November 12, 2008 and January 14, 2009 reports upon which the SHO relied.
It can be noted that the November 12, 2008 report states:
Mr. Knedler's physical abilities related to what he would be
able to perform in an eight-hour work day are considerably
less than what is generally determined to be a sedentary level
of duty.
{¶82} At first blush, the January 7, 2009 report is inconsistent with the
November 12, 2008 report. That is, the November 12, 2008 report finds relator able to
perform less than a sedentary level of work while the January 7, 2009 report finds
relator able to lift, push, and pull to a maximum of 50 pounds.
{¶83} Ohio Adm.Code 4121-3-34(B)(2)(a) provides:
"Sedentary work" means exerting up to ten pounds of force
occasionally (occasionally: activity or condition exists up to
one-third of the time) and/or a negligible amount of force
frequently (frequently: activity or condition exists from one-
third to two-thirds of the time) to lift, carry, push, pull, or
otherwise move objects. Sedentary work involves sitting
most of the time, but may involve walking or standing for
brief periods of time. Jobs are sedentary if walking and
standing are required only occasionally and all other
sedentary criteria are met.
{¶84} Ohio Adm.Code 4121-3-34(B)(2)(c) provides:
"Medium work" means exerting twenty to fifty pounds of
force occasionally, and/or ten to twenty-five pounds of force
frequently, and/or greater than negligible up to ten pounds
of force constantly to move objects. Physical demand
requirements are in excess of those for light work.
{¶85} It can be argued that Dr. Manuel's January 7, 2009 report suggests that
relator was then capable of "medium work" because of the 50-pound restriction. Also,
Dr. Manuel refers to "shoulder work" when limiting that work to "only occasional."
No. 12AP-804 30
{¶86} It can be observed that the November 12, 2008 report, without so stating,
is premised upon Dr. Manuel's examinations that predate the report while the
January 7, 2009 report or office note is premised specifically upon the January 7, 2009
examination. That is, the November 12, 2008 and January 7, 2009 reports are not
based upon the same examination. Given that scenario, Genuine Parts, a case cited by
the commission in its July 13, 2010 order, is not directly on point.
{¶87} Nevertheless, the SHO's reliance upon Dr. Manuel's November 12, 2008
report ignores Dr. Manuel's January 7, 2009 report of an examination performed
subsequent to the November 12, 2008. How can the January 7, 2009 report from the
same doctor who authored the November 12, 2008 report be ignored in favor of the
earlier report? It cannot.
{¶88} The magistrate finds State ex rel. Conrad v. Indus. Comm., 88 Ohio St. 3d
413 (2000), helpful to the analysis at this point. The Conrad case is summarized by the
magistrate in State ex rel. Clark v. Indus. Comm., 10th Dist. No. 11AP-47, 2012-Ohio-
937:
[In Conrad], Dr. Rutherford had examined the claimant in
October 1994 and found that "she would not benefit from
any further surgical procedure at this time." One month
later, the claimant had an acute exacerbation of her lower
back condition that required emergency hospitalization. In
mid-October 1995, the claimant's treating physician, Dr.
Rohner, sought emergency authorization for surgery. The
self-insured employer refused to authorize the surgery and
the commission denied the claimant's request for
authorization, citing Dr. Rutherford's report. The Conrad
court held that Dr. Rutherford's report was not probative of
the need for surgery following the 1994 exacerbation of the
claimant's condition.
Id. at ¶ 54.
{¶89} In Conrad, the court observed that Dr. Rutherford's report preceded "new
and changed circumstances" embodied by the exacerbation of the claimant's condition.
The Conrad court explains:
To endorse the continued probative value of Dr. Rutherford's
report, in view of the events occurring after his examination
of claimant, gives his report a res judicata effect. This result
was rejected in State ex rel. B.O.C. Group, GMC v. Indus.
No. 12AP-804 31
Comm. (1991), 58 Ohio St. 3d 199, 201, 569 N.E.2d 496, 498,
quoting 3 Larson, Workers' Compensation Law (1989) 15-
426, 272(99), to 15-426, 272(100), Section 79.72(f):
" 'It is almost too obvious for comment that res judicata does
not apply if the issue is claimant's physical condition or
degree of disability at two entirely different times. * * * A
moment's reflection would reveal that otherwise there would
be no such thing as reopening for change in condition. The
same would be true of any situation in which the facts are
altered by a change in the time frame * * *.' "
Given these principles and the facts presented, Dr.
Rutherford's report was not probative of the need for surgery
following the 1994 exacerbation of claimant's condition. The
commission, therefore, abused its discretion in relying on
that report to deny payment for the procedure.
Id. at 875.
{¶90} Here, that Dr. Manuel examined relator after he issued his November 12,
2008 report is a new and changed circumstance following the issuance of the
November 12, 2008 report. On January 7, 2009, Dr. Manuel reports a very different
picture of relator's work status compared to the November 12, 2008 report. On
January 7, 2009, the tenor of the office note is that relator is not incapable of work.
Under these circumstances, the SHO did not have the discretion to rely upon the
November 12, 2008 report and reject the subsequent one. Conrad. While the
November 12, 2008 and January 7, 2009 reports are not necessarily inconsistent under
Genuine Parts because they are premised upon different examinations, they clearly do
not present an opportunity for the SHO to choose the earlier report over the latter in
order to support the PTD award.
{¶91} Accordingly, the magistrate concludes that the November 12, 2008 and
January 14, 2009 reports of Dr. Manuel are not some evidence upon which the SHO
could rely to support the PTD award. Reliance upon those reports was a clear mistake of
law that provided the prerequisite for the commission's exercise of continuing
jurisdiction. Conrad.
{¶92} Apparently, at the July 13, 2010 hearing before the commission, relator
argued that Dr. Manuel's June 29, 2010 report must be viewed as a clarifying report
No. 12AP-804 32
under State ex rel. Chrysler Corp. v. Indus. Comm., 81 Ohio St. 3d 158 (1998). In his
June 29, 2010 report, Dr. Manuel asserts that his January 7, 2009 report contains an
error regarding the so-called "activity restrictions," which are said to be "outdated."
{¶93} According to Dr. Manuel's June 29, 2010 report, his January 7, 2009
report fails to "reflect the changes made on November 12, 2008."
{¶94} In its July 13, 2010 order, the commission found that Dr. Manuel's
June 29, 2010 report was untimely submitted under Ohio Adm.Code 4121-3-34(C)(4)(a)
and (d).
{¶95} Ohio Adm.Code 4121-3-34(C) sets forth the commission's rules for the
"Processing of applications for permanent and total disability." Thereunder Ohio
Adm.Code 4121-3-34(c)(4) provides:
The injured worker shall ensure that copies of medical
records, information, and reports that the injured worker
intends to introduce and rely on that are relevant to the
adjudication of the application for permanent total disability
compensation from physicians who treated or consulted the
injured worker that may or may not have been previously
filed in the workers' compensation claim files, are contained
within the file at the time of filing an application for
permanent total disability.
***
Upon the request of either the injured worker or the
employer and upon good cause shown, the hearing
administrator may provide an extension of time, to obtain
the medical evidence described in paragraphs (C)(4)(a) and
(C)(4)(b) of this rule. Thereafter, no further medical evidence
will be admissible other than additional medical evidence
approved by a hearing administrator that is found to be
newly discovered medical evidence that is relevant to the
issue of permanent total disability and which, by due
diligence, could not have been obtained under paragraph
(C)(4)(a) or (C)(4)(b) of this rule.
{¶96} Clearly, Dr. Manuel's June 29, 2010 report was not even in existence at the
January 13, 2010 hearing before the SHO whose order (mailed March 2, 2010) was at
issue before the commission on the question of continuing jurisdiction.
{¶97} The issue before the commission at the July 13, 2010 hearing was whether
the SHO's order of January 13, 2010 contained a clear mistake of law upon which the
No. 12AP-804 33
commission could premise the exercise of its continuing jurisdiction. The July 13, 2010
hearing before the commission was not, as relator seems to suggest, another
opportunity for relator to submit additional evidence that might buttress the SHO's
order. Moreover, relator cites to no authority suggesting that he can add to the
administrative record at a commission hearing on continuing jurisdiction to support the
very order under review by the commission. In short, relator's argument (Relator's
Amended Brief, 30-37.) that the commission abused its discretion in refusing to
consider Dr. Manuel's June 29, 2010 report lacks merit.
{¶98} Based upon the above analysis, the magistrate concludes that the
commission did have continuing jurisdiction over the January 13, 2010 order of the
SHO, and the commission therefore properly vacated the January 13, 2010 SHO's order
that had awarded PTD compensation.
The Second Issue - The Absent Commissioner
{¶99} Recently, in State ex rel. Stevens v. Indus. Comm., 10th Dist. No. 10AP-
1147, 2013-Ohio-2448, this court had occasion to determine whether the vote of
commissioner Abrams, who was absent from a hearing, deprived the relator, Sophia
Stevens, of due process of law under Ormet, essentially the issue as presented here. In
Stevens, this court found that Abrams' vote deprived Sophia Stevens of due process of
law in the commission's determination that she was not permanently and totally
disabled.
{¶100} In Stevens, this court premised its decision on two prior cases from this
court involving Abrams' absence from a hearing. Those two cases are State ex rel. Sigler
v. Lubrizol Corp., 10th Dist. No. 10AP-255, 2011-Ohio-4917 and State ex rel. Evert v.
Indus. Comm., 10th Dist. No. 11AP-465, 2012-Ohio-2404. In Stevens, this court,
speaking through its magistrate, had occasion to summarize Sigler and Evert, two
decisions that the Stevens court found controlling:
In [Sigler], this court, applying Ormet, held that the
claimant, Terry W. Sigler ("Sigler") was denied due process
of law when commissioner Abrams, who was absent at a
July 28, 2009 hearing, joined another commissioner in a
two-to-one vote to exercise continuing jurisdiction over an
SHO's order granting PTD compensation, and then denied
the PTD application.
No. 12AP-804 34
In Sigler, immediately above Abrams' signature on the order,
Abrams indicated that he had discussed the matter with Bob
Cromley who was present at the July 28, 2009 hearing.
Cromley summarized the testimony, evidence and arguments
presented at the hearing. Also, in the mandamus action, the
commission filed an affidavit of Robert Cromley aka Bob
Cromley in which Cromley averred that he has long been
employed as a commission hearing officer and that, at times,
he assists the commissioners when they preside at hearings.
Cromley further averred that he took handwritten notes
during the hearing and used those notes as a reference when
discussing the case with Abrams.
Finding that Abrams' vote denied Sigler due process of law,
this court explained:
Sigler testified at the hearing held before the two other
commissioners. He testified about his physical condition. He
testified about his attempts at vocational rehabilitation. He
also testified about future medical procedures which were
contemplated, including a second surgery to his injured
back.
The order signed by two of the commissioners is critical of
Sigler's efforts at rehabilitation. Evaluating Sigler's past
efforts at rehabilitation and his ability to benefit from future
rehabilitation efforts seems to be key to the finding that
Sigler is or is not entitled to PTD compensation. The third
commissioner should have been in a position to evaluate
Sigler's credibility on these issues, not rely on the
impressions and notes of a commission employee and that
employee's summaries of what occurred.
***
Credibility, especially the credibility of a claimant, can be key
to reaching a just decision in important workers'
compensation cases. As long as the commission and the
courts are willing to consider failure to fully pursue
rehabilitation efforts as a negative factor in deciding PTD
cases, the injured worker should be able to explain how he or
she has done all he or she can do in pursuing rehabilitation.
As long as there are disputes among medical professionals
about a claimant's physical abilities, the claimant should be
able to tell, in lay terms, what he or she can do. The
No. 12AP-804 35
claimant's credibility may help determine which medical
reports the commission finds persuasive.
With today's technological capabilities, there is no reason the
commission cannot have a complete record, even a video
record, of the testimony before it. An absent commissioner
could then make the appropriate decision without risking a
violation of Due Process of Law. Id. at ¶ 7–8, 11–13.
It can be further noted that, in [Evert], this court, citing
Sigler, also found that the vote of an absent commissioner
violated the claimant's right to due process of law. In Evert,
this court states:
The commissioners' responsibility as to fact finding is at the
heart of our Sigler decision and the opinion of the Supreme
Court of Ohio in Ormet which Sigler followed. Both
decisions are founded in the requirement that government
entities provide Due Process of Law.
Counsel for the commission and BWC correctly note that the
credibility of the claimant in the Sigler case was critical to a
determination of whether or not Sigler, the claimant, was
entitled to receive permanent total disability compensation.
Id. at ¶ 7–8.
Stevens at ¶ 21-24.
{¶101} Here, as earlier noted, Abrams provided the following explanation above
his signature on the July 13, 2010 order:
On 08/04/2010, I discussed this mater with Cindy Albrecht,
who was present at the 07/13/2010 hearing. Ms. Albrecht
summarized the testimony, evidence and arguments
presented at hearing. After this discussion and a review of all
the evidence contained within the claim file, I vote to grant
continuing jurisdiction and deny the IC-2, Application for
Permanent Total Disability Compensation, filed
01/22/2009.
{¶102} The July 13, 2010 order indicates that "Mr. and Mrs. Knedler" appeared.
In the body of the commission's order, there is no indication that relator or his spouse
testified at the hearing. The July 13, 2010 hearing was not recorded and so we do not
have a hearing transcript.
No. 12AP-804 36
{¶103} Abrams' statement that Ms. Albrecht "summarized the testimony" is
puzzling because the order itself fails to reference any testimony from anyone at the
hearing.
{¶104} Given Abrams' statement, this magistrate cannot find that Mr. Knedler did
not testify. Obviously, if he did testify, we do not know what he said.
{¶105} Based upon the foregoing analysis, the magistrate concludes that
commissioner Abrams' absence at the July 13, 2010 hearing deprived relator of due
process of law that was not remedied by his discussion with Ms. Albrecht.
{¶106} Abrams' absence at the July 13, 2010 hearing deprived relator of due
process of law only with respect to that portion of the commission's July 13, 2010 order
that determined on the merits relator's application for PTD compensation. That is so
because the merit determination of the application required the commissioners to weigh
the medical evidence and to analyze the non-medical factors where witness credibility
may have been at issue.
{¶107} However, Abrams absence from the July 13, 2010 hearing did not deprive
relator of due process of law with respect to the commission's determination that the
January 13, 2010 order of the SHO contained a clear mistake of law. That is so because
the determination of a clear mistake of law did not rest upon witness credibility at the
July 13, 2010 hearing. Moreover, had the commission failed to exercise its continuing
jurisdiction over the SHO's order of January 13, 2010, respondent employer would be
entitled to a writ of mandamus ordering the commission to vacate the SHO's order of
January 13, 2010 due to the clear mistake of law. See State ex rel. B & C Machine Co. v.
Indus. Comm., 65 Ohio St. 3d 538 (1992) (Expanding the commission's continuing
jurisdiction to include a clear mistake of law, the court explains the relationship between
mandamus and the exercise of continuing jurisdiction over a clear mistake of law.).
{¶108} As earlier noted, on November 8, 2010, the bureau mailed an order
declaring an overpayment of PTD compensation starting November 12, 2008.
$39,537.90 was stated to be the overpayment amount.
{¶109} Following a March 3, 2011 hearing, an SHO issued an order finding that
relator is entitled to keep the payments for the period November 12, 2008 through
August 4, 2010. The SHO further found that the overpayment beginning August 4, 2010
should be changed to the statutory surplus fund.
No. 12AP-804 37
{¶110} On June 14, 2011, the three-member commission mailed an interlocutory
order.
{¶111} Following a August 2, 2011 hearing, the three-member commission issued
an order exercising continuing jurisdiction over the SHO's order of March 3, 2011 and
vacating the order. The commission determined that the entire overpayment of
$39,537.90 must be recouped pursuant to R.C. 4123.511(K).
{¶112} Given that the portion of the commission's July 13, 2010 order that
determined the merits of relator's PTD application must be vacated, and that further
administrative proceedings must be conducted, it is clear that the bureau's order of
November 8, 2010 declaring an overpayment cannot stand at this point in the
proceedings. Likewise, the commission orders that followed the bureau's November 8,
2010 declaration of overpayment cannot stand. The commission must therefore vacate
the bureau's November 8, 2010 order and the several orders that follow the bureau's
order.
{¶113} Accordingly, it is the magistrate's decision that this court issue a writ of
mandamus ordering the commission to vacate that portion of its July 13, 2010 order
that determines that relator is capable of sustained remunerative employment, and
denies the PTD application on that basis, and to conduct an additional hearing on
relator's PTD application with all three commissioners present and participating, or
conduct an additional hearing with sufficient record of the proceedings such that the
necessary credibility determinations can be made by all the commissioners. Also, the
writ must order that the commission vacate the bureau's November 8, 2010 order
declaring an overpayment and the several orders that follow the bureau's order.
/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).