State ex rel. Costco Wholesale Corp. v. Howard , 2019 Ohio 1460 ( 2019 )

[Cite as State ex rel. Costco Wholesale Corp. v. Howard, 2019-Ohio-1460.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
The State ex rel. :
Costco Wholesale Corporation,
:
Relator,
:
v. No. 18AP-115
:
Jennifer Howard et al., (REGULAR CALENDAR)
:
Respondents.
:
D E C I S I O N
Rendered on April 18, 2019
On brief: Frost Brown Todd LLC, Noel C. Shepard, and
Joseph R. Sutton, for relator. Argued: Anne E. Duprey.
On brief: Gallon, Takacs, Boissoneault & Schaffer Co., LPA,
and Theodore A. Bowman, for respondent Jennifer Howard.
Argued: Theodore A. Bowman.
On brief: Michael DeWine, Attorney General, and John
Smart, for respondent Industrial Commission of Ohio.
Argued: John Smart.
IN MANDAMUS
ON OBJECTIONS TO THE MAGISTRATE'S DECISION
LUPER SCHUSTER, J.
{¶ 1} Relator, Costco Wholesale Corporation ("Costco"), initiated this original
action requesting this court issue a writ of mandamus ordering respondent Industrial
Commission of Ohio ("commission") to suspend the permanent total disability ("PTD")
compensation application filed by Jennifer Howard ("claimant") because of her refusal to
provide a signed medical release permitting disclosure of all medical records from
No. 18AP-115 2
treatment or examination rendered by any physician pertaining to all conditions, as well as
a complete list of her medical providers.
{¶ 2} This matter was referred to a magistrate of this court pursuant to Civ.R. 53
and Loc.R. 13(M) of the Tenth District Court of Appeals. The magistrate issued the
appended decision, including findings of fact and conclusions of law. The magistrate
determined that Costco has not demonstrated that the commission abused its discretion in
denying Costco's requests to require claimant to sign an unlimited medical release and to
suspend claimant's PTD application because she did not sign such a release. Thus, the
magistrate recommends this court deny Costco's request for a writ of mandamus.
{¶ 3} Costco has filed objections to the magistrate's decision. Costco alleges the
magistrate erroneously concluded that there is no Ohio case, statute, or rule that requires
claimant to release the medical records requested, and the magistrate erroneously
concluded that Costco failed to demonstrate that the commission abused its discretion in
denying Costco's request for an unlimited medical release and suspension of the claim.
According to Costco, Ohio law required claimant to sign a release for these records and the
commission abused its discretion in not suspending her application for PTD compensation
based on her refusal to sign such a release. We disagree.
{¶ 4} PTD is defined as the inability to perform sustained remunerative
employment. State ex rel. Stephenson v. Indus. Comm., 31 Ohio St.3d 167, 170 (1987). In
determining PTD, the claimant's allowed medical conditions as well as the non-medical
factors enumerated in Stephenson must be considered. State ex rel. Nissin Brake Ohio Inc.
v. Indus. Comm., 127 Ohio St.3d 385, 2010-Ohio-6135, ¶ 12. If the allowed medical
conditions, standing alone, prevent all employment, consideration of the Stephenson
factors is unnecessary. State ex rel. Galion Mfg. Div. v. Haygood, 60 Ohio St.3d 38, 39-40
(1991). Further, non-allowed conditions cannot be used to advance or defeat a claim for
compensation. State ex rel. Waddle v. Indus. Comm., 67 Ohio St.3d 452 (1993). The mere
presence of a non-allowed condition in a claim for compensation does not in itself destroy
the compensability of the claim, but the claimant must meet his burden of showing that an
allowed condition independently caused the disability. State ex rel. Bradley v. Indus.
Comm., 77 Ohio St.3d 239, 242 (1997). Even if non-allowed conditions are severe, they are
irrelevant as long as the allowed conditions are independently disabling. State ex rel. WCI
No. 18AP-115 3
Steel, Inc. v. Indus. Comm., 96 Ohio St.3d 24, 2002-Ohio-3315, ¶ 13. If the inability to
work, however, is due to allowed and non-allowed conditions acting in tandem,
compensation cannot be paid, because a claimant can never be compensated for a disability
that is caused, in whole or part, by medical conditions that are unrelated to the industrial
claim. State ex rel. Nissin Brake Ohio at ¶ 13, citing State ex rel. Waddle at 455, State ex
rel. Fox v. Indus. Comm., 162 Ohio St. 569, 576 (1955).
{¶ 5} Based on her filing of an application for PTD compensation, Ohio law
imposed discovery requirements on claimant. Pursuant to R.C. 4123.651(A), an employer
has a right to have a claimant examined once by a physician of the employer's choice on any
issue asserted by the employee. Additionally, R.C. 4123.651(B) provides that the "bureau
of workers' compensation shall prepare a form for the release of medical information,
records, and reports relative to the issues necessary for the administration of a claim under
this chapter." The "claimant promptly shall provide a current signed release of the
information, records, and reports when requested by the employer." R.C. 4123.651(B). "If,
without good cause, an employee * * * refuses to release or execute a release for any medical
information, record, or report that is required to be released under this section and involves
an issue pertinent to the condition alleged in the claim," her right to have her pending claim
for compensation or benefits considered, or to receive any payment for compensation or
benefits previously granted, "is suspended during the period of refusal." R.C. 4123.651(C).
{¶ 6} Here, Costco requested a global medical release from claimant and she
refused to sign such a release. Costco argues claimant's release of all medical records since
the date of her injury is necessary for the administration of her claim for PTD
compensation. While Costco acknowledges that the commission maintains discretion in
determining which medical records must be released to the employer, it argues this
discretion was limited in this case because the administrative record shows claimant has a
history of medical problems unrelated to her injury that could impact her ability to work.
Costco contends that claimant's medical history must be fully disclosed because it is
necessary to develop the issue of whether any non-allowed condition is working in tandem
with any allowed condition to render her unable to perform sustained remunerative
employment.
No. 18AP-115 4
{¶ 7} The magistrate in this case resolved that this court's decision in State ex rel.
Sysco Food Servs. of Cleveland v. Indus. Comm., 10th Dist. No. 08AP-945, 2009-Ohio-
4647, is helpful to the resolution of the issues raised by Costco's global request. Costco,
however, argues that the magistrate placed undue reliance on Sysco. In Sysco, this court
held that the commission did not abuse its discretion in refusing to suspend the claimant's
claim due to his refusal to produce information pre-dating his injury by ten years because
no statute or rule required the release of the information and because the relator failed to
explain the relevance of the information. Id. at ¶ 9. In that case, the record indicated the
claimant had been involved in an automobile accident a few months prior to the work-
related injury. Id. at ¶ 43. The employer initially asked for a release regarding the
claimant's treatment for the work-related injury, and it subsequently asked the commission
to require the claimant to provide information dating back ten years. Id. at ¶ 36. In addition
to finding the commission did not abuse its discretion in not suspending the claimant's
claim for failure to provide medical information pre-dating the industrial injury by ten
years, we noted that, "[m]edical information regarding any injuries claimant sustained
from that automobile accident are likely relevant to this action and should be disclosed to
relator." Id. at ¶ 43. Thus, this court opined that "[i]f relator would have asked claimant to
provide medical information and the names of treating physicians who had treated
claimant for his back, including the treatment he received following the automobile
accident, the result would likely be different." Id. at ¶ 43.
{¶ 8} We agree with the magistrate that the Sysco decision is helpful in guiding the
proper disposition of this case. As in Sysco, there is no Ohio case, statute, or rule that
required claimant to sign the unrestrictive release Costco prepared. As Costco
acknowledges in its briefing in support of its objections, the records required to be released
in a particular case are fact dependent, not lending itself to blanket rules. Further, contrary
to Costco's position that all medical records since the date of claimant's injury are necessary
for the administration of her claim, the known existence of non-allowed conditions does
not necessitate a claimant's global medical records release simply because those non-
allowed conditions may also be debilitating. In denying Costco's request, the commission
through its staff hearing officer ("SHO") limited the required release to the body parts in
the claim. The SHO resolved that Costco's request for all medical records was overbroad
No. 18AP-115 5
and unsupported by Ohio law. This resolution of the issue was reasonable and not
inconsistent with any case, statute, or rule governing discovery relating to a PTD
compensation application. Certainly, the commission may, based on a reasonably limited
information request, exercise its discretion and decide that a release of records relating to
particular non-allowed conditions is appropriate. See Sysco. In this case, however, we find
the commission did not abuse its discretion in not requiring claimant to comply with
Costco's unrestricted request.
{¶ 9} For these reasons, we find that Costco's first and second objections to the
magistrate's decision lack merit.
{¶ 10} Following our independent review of the record pursuant to Civ.R. 53, we find
the magistrate correctly determined that Costco is not entitled to the requested writ of
mandamus. The magistrate properly applied the pertinent law to the salient facts.
Accordingly, we adopt the magistrate's decision as our own, including the findings of fact
and conclusions of law contained therein. We therefore overrule Costco's objections to the
magistrate's decision and deny its request for a writ of mandamus.
Objections overruled; writ of mandamus denied.
KLATT, P.J., and DORRIAN, J., concur.
No. 18AP-115 6
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
The State ex rel. :
Costco Wholesale Corporation,
:
Relator,
:
v. No. 18AP-115
:
Jennifer Howard et al., (REGULAR CALENDAR)
:
Respondents.
:
MAGISTRATE'S DECISION
Rendered on August 27, 2018
Frost Brown Todd LLC, Noel C. Shepard, and Joseph R.
Sutton, for relator.
Gallon, Takacs, Boissoneault & Schaffer Co., LPA, and
Theodore A. Bowman, for respondent Jennifer Howard.
Michael DeWine, Attorney General, and John Smart, for
respondent Industrial Commission of Ohio.
IN MANDAMUS
{¶ 11} Relator, Costco Wholesale Corporation, has filed this original action
requesting this court issue a writ of mandamus ordering respondent Industrial
Commission of Ohio ("commission") to suspend the application for permanent total
disability ("PTD") compensation filed by Jennifer Howard ("claimant") because of her
refusal to provide a signed medical release permitting disclosure of all medical
No. 18AP-115 7
information pertaining to non-allowed conditions and non-allowed preexisting
conditions, as well as a complete list of medical providers.
Findings of Fact:
{¶ 12} 1. Claimant sustained a work-related injury on August 11, 2009 when she
was involved in a motor vehicle accident while working as a marketing representative for
relator.
{¶ 13} 2. Claimant's workers' compensation claim has been allowed for the
following conditions:
Lumbar sprain; left knee sprain; loose body in the left knee;
dislocation of the patella in the left knee; left knee
arthrofibrosis; left patellar tendonitis; left knee medial
meniscus tear status post arthroscopy repair; reflex
sympathetic dystrophy left lower extremity; major
depression, single episode, severe, without psychosis; anxiety
disorder; reflex sympathetic dystrophy of the right lower
extremity.
{¶ 14} 3. On October 2, 2017, claimant filed an application for PTD compensation.
{¶ 15} 4. Relator requested that claimant provide a release permitting it to obtain
complete medical records without limiting those records requested to the allowed
conditions in claimant's claim. In its October 27, 2017 letter from relator's counsel
requesting a prehearing conference to address claimant's failure to execute an
unrestricted medical release, relator argued:
Claimant's failure to provide a full medical release limits any
medical provider with the critical information needed to
evaluate whether the allowed conditions in the claim are the
underlying cause of Claimant's request for PTD. The limited
medical release hinders the Employer's ability to collect
records that could potentially identify disabling conditions
unrelated to the Claimant's workers' compensation claim.
{¶ 16} 5. The prehearing conference was held on November 14, 2017. The Toledo
hearing administrator granted relator's request, in part, and issued a compliance letter to
claimant directing she provide some, but not all, of the additional information requested.
Specifically, that compliance letter provides:
[T]he Employer's request for new medical releases is granted
to the extent the Injured Worker is to sign a new C-101
No. 18AP-115 8
Medical Release and a ProMedica Release. The ProMedica
Release is to aid in securing the documents of Ryan Szepiela,
M.D.
Additionally, the Injured Worker is to complete a new list of
physicians including the name of his [sic] primary care
physician and address.
The C-101 is to specify "for treatment of: Lumbar Spine; Left
and Right knees; Reflex Sympathetic Dystrophy; and
Depression and Anxiety from 1999 to present."
The Injured Worker is to complete the above documents by
11/24/2017 and deliver them to the Employer's Attorney and
copy the Industrial Commission of Ohio.
It is further the finding of the Hearing Administrator that the
parties must adhere to the provisions of this compliance
letter.
(Emphasis sic.)
{¶ 17} 6. On November 30, 2017, relator asked the commission to suspend the
processing of relator's PTD application under R.C. 4123.651 because claimant had not
provided the unlimited medical record and provider list relator had requested.
Specifically, that letter provides:
Under Ohio law, the Employer has the right to submit medical
evidence relating to the issue of permanent total disability
compensation to the Commission for consideration. See
O.A.C. §4121-3-34(C)(4)(b). That medical evidence includes
copies of medical records, information, and reports. See
O.A.C. §4121-3-34(C)(4)(a). When an injured worker applies
for permanent total disability compensation, any and all
medical conditions for which the claimant has treated become
relevant to the processing of the application for permanent
total disability. Under Ohio law, the Industrial Commission
must consider whether or not non-allowed conditions or non-
allowed pre-existing conditions are the proximate cause of the
injured worker's inability to work. The Commission's
responsibility to find out whether or not non-allowed
conditions or non-allowed pre-existing conditions are the
cause of permanent total disability is clearly set forth in O.A.C.
§4121-3-34(D)(1)(h) and (i). Thus, the Commission is unable
to carry out its statutory responsibilities of adjudicating PTD
No. 18AP-115 9
applications if it is not able to be made aware of non-allowed
conditions and/or non-allowed pre-existing conditions that
the claimant suffers from. The employer should be entitled to
a medical release and a list of providers who have treated the
claimant since the date of injury for both allowed and non-
allowed conditions in order to submit the medical records
from all of those providers to the Commission for
consideration of the claimant's application.
In the case at bar, it is known that the Injured Worker was
awarded Social Secuirty Disability compensation in 2012
before significant physical and psychological conditions were
ever allowed in her claim. Therefore, she has previously
alleged that she has been unable to work based on conditions
that did not include her reflex sympathetic dystrophy and her
psychological condition that is currently allowed in her claim.
Furthermore, she may have other health conditions that are
currently preventing sustained remunerative employment.
The Employer must be permitted to investigate the Injured
Worker's non-allowed conditions and non-allowed pre-
existing conditions in order to defend the application. Of
course, Employer will exercise its responsibility with respect
to filing all records that it obtains with the Industrial
Commission for consideration.
In the case at bar, the Injured Worker has only provided a
signed medical release authorizing the release of medical
information pertaining to her allowed body parts.
Furthermore, the medical provider list that she has submitted
only refers to providers that have treated her under the claim.
This release does not permit the Employer to obtain medical
records regarding non-allowed conditions and non-allowed
pre-existing conditions that may (or may not) be the
proximate cause of the Injured Worker's inability to work.
R.C. §4123.651(B) provides that a claimant promptly shall
provide a current signed release of the information, records,
and reports when requested by the employer. The medical
information, records, and reports that are referred to are
those "relative to the issues necessary for the administration
of a claim." The limited release and provider list submitted by
the Claimant in this case does not permit Employer to obtain
the medical information, records, and reports regarding non-
allowed conditions and non-allowed pre-existing conditions
that the Industrial Commission needs to consider when
adjudicating the PTD application.
No. 18AP-115 10
R.C. §4123.651(C) provides that[:]
If, without good cause, an employee refuses to submit to any
examination scheduled under this chapter or refuses to
release or execute as release for any medical information,
record, or report that is required to be released under this
section and involves an issue pertinent to the condition
alleged in the claim, his right to have his claim for
compensation or benefits considered, if his claim is pending
before the Administrator, Commission, or a District or Staff
Hearing Officer, or to receive any payment for compensation
or benefits previously granted, is suspended during the period
of refusal. (Emphasis added.) In the case at bar, since the
Injured Worker has refused to provide a global release of any
and all medical information pertaining to her treatment
history and her medical conditions, including non-allowed
conditions and non-allowed pre-existing conditions, and has
failed to provide a list of providers who has treated those
conditions, the Employer respectfully requests a suspension
of this claim pursuant to R.C. §4123.651(C).
(Emphasis sic.)
{¶ 18} 7. In a compliance letter mailed December 5, 2017, the Toledo hearing
administrator denied relator's request to suspend claimant's claim, stating:
The suspension request is denied for the reason that the
Injured Worker has completed the list of providers and signed
the requested medical releases.
Following review of the claim file and relevant evidence, it is
the finding of the Hearing Administrator that the Employer
has not demonstrated good cause for the relief requested. IT
IS, THEREFORE, THE FINDING OF THE HEARING
ADMINISTRATOR THAT THE CLAIM IS NOT
SUSPENDED.
If a timely objection is not filed to this compliance letter, any
payments of compensation and/or benefits terminated by the
Administrator or by the Self–Insuring Employer on behalf of
the Employer's motion shall be made within fourteen (14)
days of receipt of this compliance letter.
An objection to the above finding may be filed with the
Industrial Commission within fourteen (14) days of the
No. 18AP-115 11
receipt of this compliance letter. If a timely objection is filed,
the Employer's motion will be scheduled for an expedited
hearing before a Staff Hearing Officer within three (3)
business days of the Industrial Commission's receipt of the
objection. You may mail your objection to * * *.
(Emphasis sic.)
{¶ 19} 8. Relator objected to the compliance letter and asked that a hearing be
scheduled before a staff hearing officer ("SHO").
{¶ 20} 9. A hearing was held before an SHO on December 21, 2017. At which time,
relator's request for an unlimited medical release was denied, and relator's request for
suspension of claimant's claim was likewise denied. The SHO order provides:
The Hearing Officer finds no case law or statute which
requires a global release for medical records is required by an
Injured Worker nor is there an exception for an Injured
Worker applying for permanent total disability compensation.
An Injured Worker is required to support any requests in the
claim, including a request for permanent total disability, with
medical evidence relating to the allowed conditions alone.
Additionally, physicians who evaluate an Injured Worker for
permanent total disability, are required to opine on whether
the allowed conditions alone are independently causing
permanent total disability. Therefore the Hearing Officer
finds the limitation of release of medical records to only the
allowed body parts in the claim is upheld. The request for any
and all medical records is found to be over-broad and
unsupported by Ohio law. Therefore the Employer's request
for suspension is denied. The Injured Worker is found to have
completed the list of providers and signed the requested
medical releases pertaining to the currently allowed
conditions in the claim.
{¶ 21} All the evidence was reviewed and considered.
{¶ 22} 10. Relator's request for reconsideration was denied by order of the
commission mailed January 26, 2018.
{¶ 23} 11. Thereafter, relator filed the instant mandamus action in this court.
Conclusions of Law:
{¶ 24} Finding that relator has failed to demonstrate that the commission abused
its discretion when it denied relator's request for an unlimited medical release and
No. 18AP-115 12
suspension of claimant's claim, it is this magistrate's decision that this court should deny
relator's request for a writ of mandamus, as more fully explained below.
{¶ 25} The Supreme Court of Ohio has set forth three requirements which must be
met in establishing a right to a writ of mandamus: (1) that relator has a clear legal right to
the relief prayed for; (2) that respondent is under a clear legal duty to perform the act
requested; and (3) that relator has no plain and adequate remedy in the ordinary course
of the law. State ex rel. Berger v. McMonagle, 6 Ohio St.3d 28 (1983).
{¶ 26} In order for this court to issue a writ of mandamus as a remedy from a
determination of the commission, relator must show a clear legal right to the relief sought
and that the commission has a clear legal duty to provide such relief. State ex rel.
Pressley v. Indus. Comm., 11 Ohio St.2d 141 (1967). A clear legal right to a writ of
mandamus exists where the relator shows that the commission abused its discretion by
entering an order which is not supported by any evidence in the record. State ex rel.
Elliott v. Indus. Comm., 26 Ohio St.3d 76 (1986). On the other hand, where the record
contains some evidence to support the commission's findings, there has been no abuse of
discretion and mandamus is not appropriate. State ex rel. Lewis v. Diamond Foundry
Co., 29 Ohio St.3d 56 (1987). Furthermore, questions of credibility and the weight to be
given evidence are clearly within the discretion of the commission as fact finder. State ex
rel. Teece v. Indus. Comm., 68 Ohio St.2d 165 (1981).
{¶ 27} The relevant inquiry in a determination of permanent total disability is
claimant's ability to do any sustained remunerative employment. State ex rel.
Domjancic v. Indus. Comm., 69 Ohio St.3d 693 (1994). Generally, in making this
determination, the commission must consider not only medical impairments but also the
claimant's age, education, work record and other relevant non-medical factors. State ex
rel. Stephenson v. Indus. Comm., 31 Ohio St.3d 167 (1987). Thus, a claimant's medical
capacity to work is not dispositive if the claimant's non-medical factors foreclose
employability. State ex rel. Gay v. Mihm, 68 Ohio St.3d 315 (1994). The commission
must also specify in its order what evidence has been relied upon and briefly explain the
reasoning for its decision. State ex rel. Noll v. Indus. Comm., 57 Ohio St.3d 203 (1991).
{¶ 28} It is undisputed that claimant bears the burden of proving that the allowed
conditions in her workers' compensation claim render her unable to return to sustained
No. 18AP-115 13
remunerative employment. Non-allowed conditions can neither advance nor defeat her
claim. See State ex rel. Waddle v. Indus. Comm., 67 Ohio St.3d 452 (1993). Because the
social security administration found claimant disabled in 2012, before her claim was
allowed for significant physical and psychological conditions, relator argues that claimant
was already disabled due to non-allowed conditions before she filed her application for
PTD compensation. Without a full release of claimant's medical records, relator argues it
will not be able to prove that.
{¶ 29} As an initial matter, the magistrate specifically notes that very often
claimants who apply for PTD compensation have other medical conditions, sometimes
rather severe ones, in addition to the allowed conditions in their workers' compensation
claims. It is always the duty of the examining physicians to opine whether or not the
individual claimants are disabled as a result of the allowed conditions in their claim
without regard to the potentially disabling effects of any non-allowed conditions. It is
then the responsibility of the commission to review the medical evidence, determine
whether or not the physician's opinions are confined solely to the allowed conditions in
the particular claims, and then determine whether or not those claimants are
permanently and totally disabled based solely on the allowed conditions in the claim.
{¶ 30} R.C. 4135.651(B) requires the Ohio Bureau of Workers' Compensation
("BWC") prepare a form for the release of medical information to be signed by claimants:
The bureau of workers’ compensation shall prepare a form for
the release of medical information, records, and reports
relative to the issues necessary for the administration of a
claim under this chapter. The claimant promptly shall provide
a current signed release of the information, records, and
reports when requested by the employer. The employer
promptly shall provide copies of all medical information,
records, and reports to the bureau and to the claimant or his
representative upon request.
{¶ 31} R.C. 4135.651(C) provides for the suspension of claims as follows:
If, without good cause, an employee * * * refuses to release or
execute a release for any medical information, record, or
report that is required to be released under this section and
involves an issue pertinent to the condition alleged in the
claim, his right to have his claim for compensation or benefits
considered, if his claim is pending before the administrator,
No. 18AP-115 14
commission, or a district or staff hearing officer, or to receive
any payment for compensation or benefits previously granted,
is suspended during the period of refusal.
{¶ 32} Relator does not dispute that the hearing officer granted its request in part
by requiring claimant to provide medical evidence beyond that which she had previously
provided. Relator also does not dispute that claimant timely provided that medical
information. Instead, relator argues that claimant's refusal to provide relator with all the
medical information relator requested was without good cause.
{¶ 33} The medical release which relator wanted claimant to sign specifically
provides, in relevant part, as follows:
Pursuant to Ohio R.C. 2317.02(B) and in compliance with 45
CFR 164.508, and in connection with my workers'
compensation claim, I, Jennifer Howard, hereby give my
consent to and authorize to release any and
all reports and records maintained by any.
Hospital, Physician, Chiropractor, Physical/occupational
therapist, Psychologist and/or psychiatrist, Mental health
counselor, Imaging center, Any other treatment source,
Pharmacy Ohio Bureau of Workers' Compensation, Social
Security Administration, Ohio Department of Job and Family
Services, Insurance company, Any agency of any state, county
or municipality (including but not limited to STRS or PERS)
or employee thereof short or long term disability plan,
Veteran's Administration, Past or present employer.
Regarding medical treatment, examinations or
hospitalization or related information to my
(former)/employer, or its legal representative, Frost Brown
Todd LLC, * * *. This authorization includes release of
information concerning HIV status and treatment, treatment
of drug or alcohol abuse, drug-related conditions, alcoholism,
and/or psychiatric/psychological conditions.
(Emphasis sic.)
{¶ 34} The magistrate finds this court's decision in State ex rel. Sysco Food Servs.
of Cleveland, Inc. v. Indus. Comm., 10th Dist. No. 08AP-945, 2009-Ohio-4647 helpful.
Edward Rutkowski sustained a work-related injury on February 5, 2008. His employer,
Sysco Food Services of Cleveland, Inc. ("Sysco"), through its third-party administrator
No. 18AP-115 15
("TPA"), sent two letters to Rutkowski asking him to complete forms authorizing the
release of health information to Sysco. Apparently, Sysco was not satisfied with the
release forms and filed a motion asking to suspend the claim. Sysco had argued that the
medical releases were too restrictive. (Some information regarding how Sysco wanted
Rutkowski to complete the forms was absent from the record.) An SHO agreed with
Sysco, granted the motion to suspend the claim, and further ordered Rutkowski to provide
Sysco "with an unrestricted medical release and give the employer a list of all medical
providers that have treated his back for the last ten years." Id. at ¶ 27.
{¶ 35} Rutkowski requested the commission reconsider the SHO's decision based
on a clear mistake of law. The commission exercised its continuing jurisdiction, vacated
the prior order suspending the claim, and found that Sysco's request for medical records
going back ten years was unreasonable. That order provided in pertinent part:
Specifically, the medical release authorization in question
included a request for medical documents over the past ten
(10) years, which is not in compliance with case law, State ex
rel. Lancaster Colony Corp. v. Indus. Comm., 10th Dist. No.
07AP-268, 2008 Ohio 392. * * *
***
It is the finding of the Commission that there is no authority
under the Ohio Revised Code, the Ohio Administrative Code
or case law that allows for a claim to be suspended for failure
to execute a medical release that includes a list of all medical
providers over a ten-year period prior to the date of the
industrial injury.
Historically, the Injured Worker signed two medical release
forms, dated 02/07/2008 and 03/10/2008, prior to the
04/04/2008 medical release form request at issue today. The
two earlier release forms were signed by the Injured Worker
and provided to the Employer. However, the Employer was
not satisfied with the content of these release forms and
requested submission of a third, more expansive medical
release. This request was refused by the Injured Worker and
his legal counsel. The Staff Hearing Officer then suspended
the claim for the Injured Worker's refusal to comply with the
employer's medical release request of 04/04/2008.
No. 18AP-115 16
First, the Commission finds that the Injured Worker has
complied with the Employer's written medical release
requests. The Employer sent two letters to the Injured
Worker, dated 02/28/2008 and 04/04/2008, respectively.
Both letters requested that the Injured Worker execute a
medical release and provide a list of doctors and their
addresses. In both letters, the Employer specifically requested
information from the Injured Worker related to "…this
injury." The Employer did not request a medical release or
medical information pertaining to the ten years prior to the
date of injury in this claim. Therefore, the Commission finds
that the Injured Worker's signed releases, dated 02/07/2008
and 03/10/2008, satisfy the Employer's written requests.
Next, a review of R.C. 4123.651(B) and Ohio Adm.Code 4121-
3-09(A)(6) indicates that there are no definite guidelines for
what is required in the contents of the medical release.
However, under Ohio Adm.Code 4121-3-09(A)(3), "Medical
releases are to be executed on forms provided by the bureau
of workers' compensation, the commission, or on
substantially similar forms." (emphasis added) The
Commission finds that the requirement to provide "a list of
medical providers over a ten-year period prior to the Injury"
in the medical release form was not within the contemplation
of the statute or rule. Specifically, the Commission finds that
the Employer's medical release request is not substantially
similar to the Bureau of Workers' Compensation's C-101,
Authorization to Release Medical Information, form.
Last, the Commission finds that a medical release request for
a ten year period of time, prior to the date of injury, is not
reasonable pursuant to the case of [State ex rel. Lancaster
Colony Corp. v. Indus. Comm., 10th Dist. No. 07AP-268,
2008 Ohio 392]. Therefore, the Commission finds no legal
authority exists to compel the Injured Worker to complete
such an expansive medical release form as requested by the
Employer.
(Emphasis sic.) Id. at ¶ 29.
{¶ 36} Sysco filed a mandamus action. In adopting the decision of its magistrate,
this court determined the commission did not abuse its discretion. Specifically, through
its magistrate, this court stated:
No. 18AP-115 17
In the present case, relator contends that the commission
abused its discretion when it determined that the order
suspending claimant's claim did not comply with State ex rel.
Lancaster Colony Corp. d/b/a Pretty Prod. Inc. v. Indus.
Comm., 10th Dist. No. 07AP-268, 2008 Ohio 392. The
magistrate disagrees with relator's assertions.
In Lancaster Colony, the claimant's date of injury was
March 14, 1998. In November 2006, the claimant filed an
application for permanent total disability compensation. The
claimant had completed a medical release form; however, the
claimant refused to release social security information as well
as records covering the prior ten years in which the claimant
had received any treatment for each of the alleged symptoms
and injuries upon which her claim was based. This court
found that there was no statute or rule that required the
release of information requested by the employer.
Specifically, this court adopted the decision of its magistrate
as follows:
* * * [The employer] cites no statute or rule requiring the
claimant to disclose all of her treating physicians in the
manner that relator has requested such information in this
case. While R.C. 4123.651 and the rules supplementing the
statute demand that the claimant provide a current signed
medical release, they do not require the claimant herself to
respond to relator's verbal or written requests to identify all of
her treating physicians. * * * In the absence of a statute or
administrative rule supplementing a statute that grants to
relator a clear legal right to compel from the claimant the
information that relator seeks, relator cannot obtain relief in
mandamus to compel the commission to suspend the claim
under R.C. 4123.651.
Moreover, contrary to relator's assertion, claimant's failure to
provide the information that relator seeks regarding her
treating physicians does not somehow create for relator a
clear legal right to compel claimant to execute an SSA release
form as an alternative to claimant's failure to respond to
relator's requests for information. In fact, this court has held
that there is no legal authority to compel a claimant to execute
a release for social security records. [State ex rel.] GMRI,
Inc. v. Indus. Comm., Franklin App. No. 03AP-931, 2004
Ohio 3842.
Id. at ¶ 32-33.
No. 18AP-115 18
In Lancaster Colony, the claimant's work-related injury
occurred in 1998 and the claimant sought permanent total
disability compensation eight years later in 2006. The
employer sought the claimant's medical records for the ten
years preceding the filing of her application, which included
two years prior to the date of her injury. In the present case,
relator alleges that claimant was involved in an automobile
accident approximately three months prior to the date
claimant asserted he sustained injuries at work. In making its
argument, relator indicated that claimant's automobile
accident may very well be causing some of the current
problems which claimant alleged occurred from a work-
related injury. However, it is unclear to the magistrate how
records going back ten years prior to both the work-related
injury and claimant's automobile accident are clearly relevant
to claimant's workers' compensation claim.
Id. at ¶ 34-36.
{¶ 37} As the SHO stated, there is no case law or statute which requires a global
release for medical records. Although relator argues that, without evidence of the severity
of claimant's non-allowed conditions, the commission will never be able to determine
whether or not she is permanently and totally disabled based solely on the allowed
conditions in her claim, that is exactly what the commission does on a daily basis. As
noted earlier, rarely does a claimant applying for PTD compensation not have other
medical conditions which may or may not be disabling. That is not the issue. No matter
what other conditions a claimant has, it is always the burden for the claimant to prove
that the allowed conditions independently render her unable to perform sustained
remunerative employment. To the extent that relator asserts that claimant has not
demonstrated good cause for not providing relator with all of her medical records
pertaining to any medical condition for which she has suffered, the magistrate finds that
not only is that information unnecessary, the request is extremely invasive. Relator is in
the same position as every other employer. Relator can have claimant examined by
physicians of its choice and those physicians will then render reports wherein they will
opine whether or not, in their medical opinion, claimant is incapable of performing some
sustained remunerative employment solely on the basis of the allowed conditions in the
claim.
No. 18AP-115 19
{¶ 38} Furthermore, finding relator is not entitled to the global medical release
which it seeks, the commission did not abuse its discretion when it denied relator's
request to suspend claimant's claim.
{¶ 39} Based on the foregoing, it is this magistrate's decision relator has not
demonstrated that the commission abused its discretion when it denied relator's request
for an unlimited medical release and its request to suspend claimant's claim, and this
court should deny relator's request for a writ of mandamus.
/S/ MAGISTRATE
STEPHANIE BISCA
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).