State ex rel. Rocktenn Co. v. Indus. Comm. ( 2013 )


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  • [Cite as State ex rel. Rocktenn Co. v. Indus. Comm., 2013-Ohio-5296.]
    IN THE COURT OF APPEALS OF OHIO
    TENTH APPELLATE DISTRICT
    State ex rel. Rocktenn Company,                        :
    f.k.a. Stone Container Corp.,
    :
    Relator,
    :                No. 12AP-862
    v.
    :            (REGULAR CALENDAR)
    Edward A. Long, Sr. and
    Industrial Commission of Ohio,                         :
    Respondents.                          :
    D E C I S I O N
    Rendered on December 3, 2013
    Scott, Scriven & Wahoff, LLP, Timothy E. Cowans and C.
    Bradley Howenstein, for relator.
    Richard F. Brian, for respondent Edward A. Long, Sr.
    Michael DeWine, Attorney General, and LaTawnda N.
    Moore, for respondent Industrial Commission of Ohio.
    IN MANDAMUS
    ON OBJECTIONS TO THE MAGISTRATE'S DECISION
    DORRIAN, J.
    {¶ 1} Relator, Rocktenn Company, f.k.a. Stone Container Corp., has filed this
    original action requesting that this court issue a writ of mandamus ordering respondent
    Industrial Commission of Ohio ("commission") to vacate its order awarding to
    respondent, Edward A. Long, Sr. ("claimant"), a one-percent increase in his percentage of
    permanent partial disability ("PPD") compensation pursuant to R.C. 4123.57. Relator
    asks us to order the commission to deny claimant's application for an increase in his PPD.
    No. 12AP-862                                                                                 2
    {¶ 2} Pursuant to Civ.R. 53(D) and Loc. R.13(M) of the Tenth District Court of
    Appeals, this matter was referred to a magistrate who issued a decision, including findings
    of fact and conclusions of law, which is appended hereto. The magistrate recommends
    that this court deny the request for a writ of mandamus.
    {¶ 3} Relator generally argues that, although the magistrate has set forth the
    applicable statute, R.C. 4123.57(A), and Ohio Adm.Code 4123-3-15(B), it does not apply
    the same to the facts of this case. Relator sets forth the following three specific objections:
    The magistrate erred in concluding that Long's subjective
    complaint described as "chronic pain" by Dr. Iemma, absent
    reasonably demonstrable (i.e. objective) medical or clinical
    findings showing a worsening of his condition since the last
    hearing, constituted some evidence upon which the
    commission could rely to award a PPD increase.
    The magistrate erred in finding Dr. Iemma's report describing
    Long's subjective complaints as "chronic pain" constituted
    substantial evidence of new and changed circumstances since
    the last award.
    The magistrate erred in finding the 2011 report of Dr. Iemma
    was some evidence upon which the commission could rely
    where his report suggests he was unaware of Long's 2010 back
    injury and resulting herniated disk at L4-5 when he attributed
    Long's low back pain following his 2010 injury to a 1990 claim
    that had not required any treatment or mediation for the
    previous nine years.
    {¶ 4} The arguments raised in relator's objections are essentially the same as
    those raised before and addressed by the magistrate.
    {¶ 5} R.C. 4123.57(A) states in part:
    Except on application for reconsideration, review, or
    modification, which is filed within ten days after the date of
    receipt of the decision of the district hearing officer, in no
    instance shall [a PPD] award be modified unless it is found
    from medical or clinical findings that the condition of the
    claimant resulting from the injury has so progressed as to
    have increased the percentage of permanent partial disability.
    * * * No application for subsequent percentage determin-
    ations on the same claim for injury or occupational disease
    shall be accepted for review by the district hearing officer
    unless supported by substantial evidence of new and changed
    No. 12AP-862                                                                               3
    circumstances developing since the time of the hearing on the
    original or last determination.
    {¶ 6} Ohio Adm.Code 4123-3-15(B) states:
    (B) "Application for Determination of Percentage of
    Permanent Partial Disability or Increase of Permanent Partial
    Disability" pursuant to division (A) of section 4123.57 of the
    Revised Code in state fund and self-insured claims.
    (1) * * * An application for an increase in permanent partial
    disability must be accompanied by substantial evidence of
    new and changed circumstances which have developed since
    the time of the hearing on the original or last determination.
    {¶ 7} While relator continues to argue in general that claimant's subjective
    complaint of "chronic pain" cannot justify the grant of an increase in permanent partial
    disability, absent objective medical or clinical findings of increased impairment, we reject
    this argument and find no merit for the reasons stated in the magistrate's decision.
    {¶ 8} Furthermore, for the reasons stated in the magistrate's decision, we reject
    relator's specific arguments that (1) claimant's complaint of chronic pain cannot
    constitute substantial evidence of new and changed circumstances because the opining
    physician failed to indicate when the "chronic pain" began, and (2) that Dr. Iemma's 2011
    report cannot constitute some evidence upon which the commission could rely because
    the report indicates no awareness of claimant's 2010 back injury. We also reject relator's
    assertion that Dr. Sethi's report is the only report on which the commission could rely.
    {¶ 9} Upon review of the magistrate's decision, an independent review of the
    record, and due consideration of relator's objections, we find the magistrate has properly
    determined the pertinent facts and applied the appropriate law. We therefore overrule
    relator's three objections to the magistrate's decision and adopt the magistrate's decision
    as our own, including the findings of fact and conclusions of law contained therein.
    {¶ 10} Accordingly, the requested writ of mandamus is hereby denied.
    Objections overruled; writ denied.
    SADLER and O'GRADY, JJ., concur.
    No. 12AP-862                                                                         4
    APPENDIX
    IN THE COURT OF APPEALS OF OHIO
    TENTH APPELLATE DISTRICT
    State ex rel.
    Rocktenn Company, f.k.a. Stone             :
    Container Corp.,
    :
    Relator,
    :              No. 12AP-862
    v.
    :       (REGULAR CALENDAR)
    Edward A. Long, Sr. and
    Industrial Commission of Ohio,             :
    Respondents.                  :
    MAGISTRATE'S DECISION
    Rendered on July 30, 2013
    Scott, Scriven & Wahoff, LLP, Timothy E. Cowans and C.
    Bradley Howenstein, for relator.
    Richard F. Brian, for respondent Edward A. Long, Sr.
    Michael DeWine, Attorney General, and LaTawnda N.
    Moore, for respondent Industrial Commission of Ohio.
    IN MANDAMUS
    {¶ 11} In this original action, relator, Rocktenn Company, f.k.a. Stone Container
    Corp. requests a writ of mandamus ordering respondent Industrial Commission of Ohio
    ("commission") to vacate its order awarding to respondent, Edward A. Long, Sr.
    ("claimant"), a one percent increase in his percentage of permanent partial disability
    No. 12AP-862                                                                            5
    ("PPD") pursuant to R.C. 4123.57, and to enter an order denying his application for an
    increase in his percentage of PPD.
    Findings of Fact:
    {¶ 12} 1. On September 18, 1990, claimant injured his lower back while employed
    with relator, a self-insured employer under Ohio's workers' compensation laws. On that
    date, claimant slipped on a wet floor and fell. The industrial claim (No. L55731-22) is
    allowed for: "low back strain; herniated disc L5-S1, left."
    {¶ 13} 2. Initially, in January 1992, claimant filed an application for the
    determination of his percentage of PPD. In October 1993, he was awarded eight percent
    PPD.
    {¶ 14} 3. In April 1994, claimant filed an application for an increase in the
    percentage of his PPD. In May 1995, he was awarded a 5 percent increase for a total of 13
    percent PPD.
    {¶ 15} 4. In May 2001, claimant filed another application for an increase in his
    percentage of PPD. In February 2002, he was awarded a 2 percent increase for a total of
    15 percent.
    {¶ 16} 5. Earlier, in July 1992, claimant underwent a laminectomy and discectomy
    at L5-S1 on the left.
    {¶ 17} 6. On an April 2000 C-9, relator approved surgery described as "lumbar
    laminectomy-discectomy L4-5 right." According to relator, it "paid for surgery for the L4-
    5 disc in 2000, even though no injury has ever been allowed at that level." (Relator's
    brief, at 4.) A medical condition is not implicitly allowed when a self-insured employer
    authorizes and pays for surgery performed to treat the condition. State ex rel. Schrichten
    v. Indus. Comm., 
    90 Ohio St. 3d 436
    (2000), citing State ex rel. Griffith v. Indus. Comm.,
    
    87 Ohio St. 3d 154
    (1999).
    {¶ 18} 7. In April 2010, claimant moved that his 1990 claim be additionally
    allowed for "herniated disc L4-L5 and right sciatica" based upon an April 14, 2010 report
    from treating physician P.L. Soni, M.D.
    {¶ 19} 8. Following a June 23, 2010 hearing, a district hearing officer ("DHO")
    issued an order disallowing the 1990 claim for L4-L5 disc herniation and dismissing the
    request for allowance of "right sciatica."
    No. 12AP-862                                                                                6
    {¶ 20} 9. Claimant administratively appealed the DHO's order of June 23, 2010.
    {¶ 21} 10. Following an August 12, 2010 hearing, a staff hearing officer ("SHO")
    issued an order affirming the DHO's order of June 23, 2010.
    {¶ 22} 11. According to relator's brief filed in this action, claimant appealed the
    SHO's order of August 12, 2010 to the Tuscarawas County Court of Common Pleas where
    the appeal remains pending. (Relator's brief, at 6.)
    {¶ 23} 12. In September 2010, claimant filed another workers' compensation claim
    (No. 10-846915) alleging that, on January 11, 2010, he injured his lower back while
    employed with another employer, Graphics Packaging.             Treating physician Dr. Soni
    opined that the herniated discs at L4-5 and L5-S1 were substantially aggravated by the
    injury.
    {¶ 24} 13. Following a March 14, 2011 hearing, an SHO disallowed claim number
    10-846915 alleging a January 11, 2010 injury. According to relator, the SHO's claim
    disallowance was appealed to the Tuscarawas County Court of Common Pleas. (Relator's
    brief, at 5.)
    {¶ 25} 14. On September 19, 2011, at claimant's own request, he was examined by
    chiropractor David M. Grunstein, D.C. Dr. Grunstein examined claimant for the 1990
    claim and he describes the allowed conditions of that claim as "[l]ow back strain;
    [h]erniated disc L5-S1, left." Dr. Grunstein opined:
    OPINION: Based on the consultation and examination
    findings above stated and how these findings correlate with
    the A.M.A. Guides, it is my opinion that the above named
    presented in this office with a total whole person impairment
    of 36 percent whole person impairment, on the above stated
    date, for the above stated conditions.
    (Emphasis sic.)
    {¶ 26} 15. Submitting the report of Dr. Grunstein, claimant filed an application for
    an increase in his percentage of PPD in the 1990 claim.
    {¶ 27} 16. On December 16, 2011, at the request of the Ohio Bureau of Workers'
    Compensation ("bureau"), claimant was examined by Joseph Iemma, M.D., who
    specializes in internal medicine. Dr. Iemma issued a two-page narrative report, stating:
    No. 12AP-862                                                                7
    CLAIM #: L55731-22
    DATE OF INJURY: 9/18/1990
    DATE OF EXAM: 12/16/2011
    ALLOWED CONDITIONS:
    [One] 847.3, Sprain, lumbar region.
    [Two] 722.10, Lumbar disc displacement.
    MEDICAL HISTORY: The claimant was working at his job.
    There was a clay "paper" wedged in. He bent over at his waist
    to pull out this clay paper wedge. He felt immediately pulling
    in his low back.
    TREATMENT: He eventually became a patient of Dr. Soni,
    orthopedist. He had an MRI. He had operative repair.
    Unfortunately, one year later, he had another injury
    requiring another operative repair. He had 2 operations back
    to back. He had physical therapy postop both.
    RESPONSE: Not good. Pain, spasm,              tightness,   and
    numbness somewhat in the left leg.
    OLD RECORDS: I have reviewed the records of Dr. Cassiono,
    MD, Dr. Smith, DO, Dr. Grunstein, DC, Dr. Soni, MD, MRI
    of lumbosacral spine which shows positive disc
    displacement.
    PRESENT COMPLAINTS: He initially had some relief, but
    now he has pain, spasm, and tightness in the low back. He
    has some left leg numbness.
    PHYSICAL EXAMINATION:
    There is no guarding. There is tenderness of the lumbosacral
    spine on the left and on the right. There is no atrophy. The
    motor sensation is +5/5 bilateral of lower extremities. There
    is decreased sharp-dull, vibratory, and light touch on the left
    leg. There is spinal radiculopathy. The reflexes are 2+ at the
    patella and 1+ at the Achilles. Station and gait are normal.
    Heel-to-toe is normal.
    Using AMA Guidelines fifth edition for the lumbosacral
    spine, pages 384-388, section 15.4, table 15.3, he is a DRE
    lumbar category 3 because of signs of radiculopathy with
    No. 12AP-862                                                                           8
    decreased sensation which is a 13% W.P.I. He also has
    chronic pain, which is an additional 3% W.P.I.
    Percentage of impairment, based on the AMA Guidelines
    fifth edition revised, the total W.P.I. for this claimant is 16%.
    Please note that he had a previous 15%, therefore, today's
    final W.P.I. is 1%.
    {¶ 28} 17. On December 23, 2011, the bureau mailed a tentative order awarding an
    increase of 1 percent PPD for a total of 16 percent PPD. The bureau's order was based
    upon the report of Dr. Iemma.
    {¶ 29} 18. Relator timely objected to the bureau's tentative order.
    {¶ 30} 19. On January 29, 2012, at relator's request, Sushil M. Sethi, M.D.,
    completed a file review of claimant's medical records in the 1990 claim. In his four-page
    narrative report, Dr. Sethi opines in response to specific questions:
    Answers to Specific Questions:
    [One] Does the claimant present with substantial
    evidence of new and distinct findings to change the
    consensus developing since June 2002, the time he
    was awarded 2% increase in impairment to a total of
    15% permanent award.
    Is it felt that his rating should be increased?
    Based on thorough review of the records it is my expert
    medical opinion that there are no objective physical findings,
    laboratory findings, or diagnostic findings to show any
    substantial evidence of new and changed circumstances to
    cause any further increase in impairment than the previous
    15%. Today's estimate based on the review of the entire
    medical records and the measurements of the treating and
    the examining physicians the claimant continues to be DRE
    category 3 and as per 5th edition AMA guidelines reference
    page 384, table 15-3 the impairment is 10% of the whole
    person. The claimant does not have any new and distinct
    findings to warrant any further increase than the previous
    award of 15%.
    [Two] What do you currently rate his percentage of
    permanent disability pursuant to the AMA
    guidelines?
    No. 12AP-862                                                                          9
    Considering all of the measurements described by different
    evaluating physicians including the chiropractor Grunstein,
    Dr. Soni, Dr. Iemma, as well as the prior measurements of
    Dr. Smith and Dr. Wilde it is my expert medical opinion that
    the claimant continues to be DRE category 3 of the lumbar
    spine page 384, table 15-3 the impairment is 10%. I have
    performed a formal pain related evaluation and find no
    additional unnecessary [sic] for pain. It is reflected in my
    assessment of the injured part. There is no further increase
    in impairment due to today's evaluation over the previous
    award.
    (Emphasis sic.)
    {¶ 31} 20. Following a February 7, 2012 hearing, a DHO issued an order affirming
    the bureau's December 23, 2011 order. The DHO's order explains:
    The order of the Administrator issued 12/23/2011 is
    affirmed.
    The Application is granted. The District Hearing Officer
    finds from proof of record that the Injured Worker's
    percentage of permanent partial disability has increased and
    is now 16 percent, which is an increase of 1 percent, and
    Injured Worker is therefore entitled to an additional award
    of compensation for a period of 2 weeks.
    This order is based upon the report of Dr. Iemma.
    {¶ 32} 21. Relator moved for reconsideration of the DHO's order of February 7,
    2012.
    {¶ 33} 22. Following an April 18, 2012 hearing, an SHO issued an order affirming
    the DHO's order of February 7, 2012. The SHO's order explains:
    The Staff Hearing Officer affirms the District Hearing
    Officer's order for the reason that it is supported by proof of
    record and is not contrary to law. Therefore the increased
    award of 16 percent, which is an increase of 1 percent,
    entitles the injured worker to an additional award of
    compensation for a period of 2 weeks.
    This decision is based upon the report of Dr. Iemma dated
    12/16/2011.
    No. 12AP-862                                                                             10
    {¶ 34} 23. On October 2, 2012, relator, Rocktenn Company, f.k.a. Stone Container
    Corp., filed this mandamus action.
    Conclusions of Law:
    {¶ 35} The main issue is whether the report of Dr. Iemma, upon which the
    commission exclusively relied, provides some evidence supporting the award of an
    increase in the percentage of PPD.
    {¶ 36} Finding that the report of Dr. Iemma provides the some evidence
    supporting the award, it is the magistrate's decision that this court deny relator's request
    for a writ of mandamus, as more fully explained below.
    {¶ 37} R.C. 4123.57 provides for partial disability compensation. R.C. 4123.57(A)
    states:
    (A) The district hearing officer, upon the application, shall
    determine the percentage of the employee's permanent
    disability, except as is subject to division (B) of this section,
    based upon that condition of the employee resulting from the
    injury or occupational disease and causing permanent
    impairment evidenced by medical or clinical findings
    reasonably demonstrable. * * * Except on application for
    reconsideration, review, or modification, which is filed
    within ten days after the date of receipt of the decision of the
    district hearing officer, in no instance shall the former award
    be modified unless it is found from medical or clinical
    findings that the condition of the claimant resulting from the
    injury has so progressed as to have increased the percentage
    of permanent partial disability. A staff hearing officer shall
    hear an application for reconsideration filed and the staff
    hearing officer's decision is final. An employee may file an
    application for a subsequent determination of the percentage
    of the employee's permanent disability. * * * No application
    for subsequent percentage determinations on the same claim
    for injury or occupational disease shall be accepted for
    review by the district hearing officer unless supported by
    substantial evidence of new and changed circumstances
    developing since the time of the hearing on the original or
    last determination.
    Supplementing the statute, Ohio Adm.Code 4123-3-15(B) provides:
    "Application for Determination of Percentage of Permanent
    Partial Disability or Increase of Permanent Partial Disability"
    No. 12AP-862                                                                           11
    pursuant to division (A) of section 4123.57 of the Revised
    Code in state fund and self-insured claims.
    (1) * * * An application for an increase in permanent partial
    disability must be accompanied by substantial evidence of
    new and changed circumstances which have developed since
    the time of the hearing on the original or last determination.
    ***
    (7) Where the application is for an increase in the percentage
    of permanent partial disability, no sooner than sixty days
    from the date of mailing of the application to the employer
    and the employer's representative, the applicant shall either
    be examined, or the claim referred for review by a physician
    designated by the bureau. * * * The bureau physician shall
    file a report of such examination or review of the record,
    together with an evaluation of the degree of impairment, as
    part of the claim file. Either the employee or the employer
    may submit additional medical evidence following the
    examination by the bureau medical section * * *.
    {¶ 38} In State ex rel. Gen. Motors Corp., Chevrolet Motor Div. v. Indus. Comm.,
    
    54 Ohio St. 2d 333
    , 335 (1978), it was held that medical reports concluding percentage
    increases beyond percentages previously reported in connection with the original claim
    are not an improper consideration under R.C. 4123.57 of "new and changed
    circumstances developing since the time of the hearing on the original or last
    determination."
    {¶ 39} In State ex rel. Core Molding Technologies v. Indus. Comm., 10th Dist. No.
    03AP-443, 2004-Ohio-2639, this court had occasion to apply the Gen. Motors holding to
    a commission award of an increase in PPD that was under challenge there.
    {¶ 40} In the Core Molding case, Kathy Yarger obtained a 1 percent PPD award on
    her initial application for a determination of her percentage of PPD. The 1 percent award
    was based upon the report of bureau doctor David C. Randolph, M.D., who examined
    Yarger in March 2002 and opined that her permanent impairment was 1 percent of the
    body as a whole.
    No. 12AP-862                                                                           12
    {¶ 41} Thereafter, in May 2002, Yarger was examined at her own request by Nancy
    Renneker, M.D., who opined that Yarger had sustained an 11 percent whole person
    impairment due to the industrial injury.
    {¶ 42} In June 2002, Yarger filed an application for an increase in her percentage
    of PPD.
    {¶ 43} In September 2002, Dr. Cantor reviewed the reports of Drs. Renneker and
    Randolph. In his report, Dr. Cantor opined that Yarger had an 11 percent permanent
    whole person impairment based upon the findings contained in the reports of the two
    examining physicians.
    {¶ 44} In September 2002, the bureau issued a tentative order finding an 11
    percent PPD, an increase of 10 percent based upon Dr. Cantor's report. Core Molding
    timely objected to the tentative order.
    {¶ 45} In November 2002, at her employer's request, Yarger was again examined
    by Dr. Randoph who issued a report that his "original impairment rating of 1% of the
    whole person remains unchanged." 
    Id. at ¶
    22. He also criticized Dr. Renneker's report
    on grounds that it was allegedly based upon non-allowed conditions.
    {¶ 46} Ultimately, following a January 2003 hearing, an SHO issued an order
    setting the percentage of PPD at 8 percent which is a 7 percent increase from the original
    award. The only explanation given in the order for the increase in the award is the
    statement "this order is based upon the reports of Drs. Cantor, Randolph and Renneker."
    
    Id. at ¶
    22.
    {¶ 47} In Core Molding, this court found that, in her May 2002 report, Dr.
    Renneker found less range of motion in Yarger's right shoulder than previously had been
    found by Dr. Randolph in his March 2002 report:
    This constituted some evidence that the injured worker's
    shoulder had significantly less range of motion as of May 9,
    2002, than it did on March 5, 2002, and that the allowed
    conditions were progressively worse at the time of the later
    examination.
    
    Id. at ¶
    5.
    {¶ 48} In Core Molding, this court, speaking through its magistrate states:
    No. 12AP-862                                                                        13
    [T]his court has had previous occasion to address the
    applicability of [State ex rel. Noll v. Indus. Comm., 57 Ohio
    St.3d 303] to the commission's determination of permanent
    partial disability. In State ex rel. Combs v. Indus. Comm.
    (Aug. 16, 2001), Franklin App. No. 00AP-1145, this court,
    with one judge dissenting, stated:
    The commission properly could indicate that it based its
    decision on the medical reports it noted in its order, as the
    commission evaluated the reports and the percentages of
    disability stated in them, and then used that information to
    arrive at a figure within the range of the reports. Moreover,
    in these circumstances, the commission is not required to
    explain exactly how it calculates an impairment rating.
    Here, the SHO's order of January 8, 2003 states reliance on
    the reports of Drs. Cantor, Randolph and Renneker in
    determining that claimant has an eight percent permanent
    partial disability. Drs. Renneker and Cantor rated claimant's
    permanent impairment at 11 percent, while Dr. Randolph
    rated the impairment at one percent.
    The commission's determination of eight percent is within
    the range of percentages of the reports relied upon. The
    commission was not required to explain how it arrived at the
    eight percent. In short, the commission's award of an eight
    percent permanent partial disability does not violate Noll.
    
    Id. at ¶
    37-39.
    {¶ 49} Here, the record contains the order of the DHO following a February 26,
    2002 hearing that resulted in an award of a 2 percent increase in the percentage of PPD
    for a total of 15 percent. The order states that it "is based upon the report of Dr(s).
    Williams and Grunstein."
    {¶ 50} The record contains the August 13, 2001 report of Perry Williams, M.D.,
    upon which the DHO's order of February 26, 2002 presumably relies. In his one-page
    narrative report, Dr. Williams opines:
    In my opinion, this individual falls into lumbosacral category
    III equating to a 10% whole person impairment.
    No. 12AP-862                                                                              14
    {¶ 51} Comparing the report of Dr. Williams to the report of Dr. Iemma at issue
    here, we find that Dr. Iemma also placed claimant at "DRE lumbar category 3" but, unlike
    Dr. Williams, added impairment due to "chronic pain." Again, Dr. Iemma states:
    Using AMA Guidelines fifth edition for the lumbosacral
    spine, pages 384-388, section 15.4, table 15.3, he is a DRE
    lumbar category 3 because of signs of radiculopathy with
    decreased sensation which is a 13% W.P.I. He also has
    chronic pain, which is an additional 3% W.P.I.
    Percentage of impairment, based on the AMA Guidelines
    fifth edition revised, the total W.P.I. for this claimant is 16%.
    Please note that he had a previous 15%, therefore, today's
    final W.P.I. is 1%.
    {¶ 52} Thus, the comparison shows that Dr. Iemma reached the 16 percent
    impairment rating by adding "chronic pain."
    {¶ 53} Relator challenges Dr. Iemma's "chronic pain" finding on several grounds.
    First, relator contends that "chronic pain" is a subjective finding, not an objective finding
    and thus pain cannot be used by the physician in his determination of impairment. The
    magistrate disagrees with relator's contention.
    {¶ 54} It is well settled that pain is a factor to be considered in determining
    medical impairment. State ex rel. Paraskevopoulos v. Indus. Comm., 
    83 Ohio St. 3d 189
    (1998); State ex rel. Unger v. Indus. Comm., 
    70 Ohio St. 3d 672
    (1994); State ex rel. Bray
    v. Indus. Comm., 10th Dist. No. 02AP-939, 2003-Ohio-2885.
    {¶ 55} Secondly, relator argues that claimant suffers pain due to the disallowed
    herniated disc at L4-5, and thus Dr. Iemma was required to specify in his report that the
    "source" of the chronic pain is the allowed herniated disc L5-S1 and not the disallowed
    herniated disc at L4-5. (Relator's brief, at 14.) According to relator, it was an abuse of
    discretion for the commission to "infer" from the report that the "chronic pain" is due to
    the 1990 injury. (Relator's brief, at 14.) It can be observed that Dr. Iemma's report does
    not refer to the disallowed condition nor does it specifically indicate that the "chronic
    pain" is not due to the disallowed herniated disc at L4-5. Nevertheless, the magistrate
    disagrees with relator's second argument.
    No. 12AP-862                                                                                15
    {¶ 56} In the heading of his report, Dr. Iemma correctly lists the claim number and
    the date of injury. He then lists the allowed conditions of the claim which relator does not
    dispute here. Given that scenario, it is permissible to infer that Dr. Iemma's "chronic
    pain" finding is related solely to the allowed conditions of the claim. That Dr. Iemma does
    not mention the disallowed condition was a factor to be considered by the commission
    when it weighed the medical reports before it. Presumably, in the exercise of its fact
    finding discretion, the commission was satisfied that Dr. Iemma's impairment rating was
    confined to the allowed conditions of the claim.
    {¶ 57} Moreover, relator's second argument suggests incorrectly that claimant has
    the burden to prove that his impairment is not due to a disallowed or non-allowed
    condition. Relator does not have such burden. State ex rel. Ignatious v. Indus. Comm.,
    
    99 Ohio St. 3d 285
    , 2003-Ohio-3627.
    {¶ 58} Based upon the above analysis, the magistrate concludes that the report of
    Dr. Iemma provides some evidence supporting the award of an increase in the percentage
    of PPD.
    {¶ 59} Accordingly, for all the above reasons, it is the magistrate's decision that this
    court deny relator's request for a writ of mandamus.
    /S/ MAGISTRATE
    KENNETH W. MACKE
    NOTICE TO THE PARTIES
    Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign
    as error on appeal the court's adoption of any factual finding
    or legal conclusion, whether or not specifically designated as
    a finding of fact or conclusion of law under Civ.R.
    53(D)(3)(a)(ii), unless the party timely and specifically
    objects to that factual finding or legal conclusion as required
    by Civ.R. 53(D)(3)(b).
    

Document Info

Docket Number: 12AP-862

Judges: Dorrian

Filed Date: 12/3/2013

Precedential Status: Precedential

Modified Date: 10/30/2014