State ex rel. M. Weingold & Co. v. Indus. Comm.

[This decision has been published in Ohio Official Reports at 

97 Ohio St.3d 44

.]




 THE STATE EX REL. M. WEINGOLD & COMPANY, APPELLANT, v. INDUSTRIAL
                      COMMISSION OF OHIO ET AL., APPELLEES.
  [Cite as State ex rel. M. Weingold & Co. v. Indus. Comm., 

2002-Ohio-5353

.]
Workers’ compensation—Substantial inconsistencies between two C84s
        generated by the same examination—Industrial Commission’s awards of
        temporary total disability compensation vacated when not supported by
        “some evidence.”
     (No. 2001-0458—Submitted July 24, 2002—Decided October 16, 2002.)
      APPEAL from the Court of Appeals for Franklin County, No. 00AP-317.
                                  __________________
        Per Curiam.
        {¶1} Appellee-claimant, James C. Borawski, sustained an industrial back
injury on February 18, 1997. On March 12, 1997, claimant saw Dr. Henry Fabian
Jr. Dr. Fabian saw claimant three more times—April 24, 1997, May 27, 1997, and
July 2, 1997.       Three C84 physician’s reports were generated by the last
examination. C84s dated July 16, 1997, and August 14, 1997, were nearly identical,
naming cervical strain and sprain as the sole work-prohibiting conditions and
reporting a lack of any objective medical findings corroborating claimant’s
complaints of pain. These forms nevertheless certified claimant as temporarily and
totally disabled from February 18, 1997, through July 2, 1997.
        {¶2} On August 6, 1997, a district hearing officer (“DHO”) for appellee
Industrial Commission of Ohio ordered temporary total disability compensation
(“TTC”) from the date of injury through March 17, 1997, and to continue upon
submission of medical proof of continuing disability. The aforementioned C84s
generated TTC payment through July 1, 1997. Payment, however, ceased when
claimant submitted no further evidence of disability.
                             SUPREME COURT OF OHIO




       {¶3} Between July 2, 1997, and the following February, claimant received
no treatment. On September 3, 1998, he was seen by Dr. Dennis Brooks. Dr.
Brooks noted in his September 10 report that claimant was trying to exaggerate his
disability and that claimant, to the contrary, had fully recovered from his industrial
injury and was able to return to his former job.
       {¶4} On December 23, 1998, claimant moved the commission for
reinstatement of TTC from July 2, 1997, forward. He accompanied his motion with
a C84 from Dr. Fabian dated July 17, 1998—54 weeks after his last examination.
Based on the same July 2, 1997 examination that had produced the two earlier C84s,
this C84 recorded, for the first time, substantial lumbar and thoracic involvement
as well as chronic spasm and polyneuropathy that “severely limits his ambulatory
capacity.” That document certified temporary total disability from February 18,
1997, through September 2, 1998.
       {¶5} A staff hearing officer awarded TTC from July 2, 1997, through
February 5, 1998, based on Dr. Fabian’s July 17, 1998 C84. TTC from February
6, 1998, through October 1999 was paid pursuant to reports from Dr. Darin
Upchurch. Compensation was terminated as of October 20, 1999, per Dr. Brooks’s
certification of claimant’s ability to return to his former position of employment.
The court of appeals denied the petition of claimant’s employer M. Weingold and
Company (“Weingold”) for a writ of mandamus ordering the commission to vacate
the award of TTC.
       {¶6} This cause is now before this court upon an appeal as of right.
       {¶7} Two periods of TTC are at issue: (1) July 2, 1997, through February
5, 1998, and (2) September 10, 1998, through October 20, 1999. For the following
reasons, we hereby order the commission to vacate both awards.
       {¶8} The first award was based on Dr. Fabian’s July 17, 1998 C84.
Weingold’s complaints about that document relate to the amount of time without
treatment and the time between the examination and the completion of the C84.




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                               January Term, 2002




       {¶9} The first complaint is not, standing alone, compelling.      Lack of
treatment may or may not suggest an absence of disability. State ex rel. Simon v.
Indus. Comm. (1994), 

71 Ohio St.3d 186, 188

, 

642 N.E.2d 1096

. In this case,
claimant’s seven months without treatment was largely attributable to the delay of
the Bureau of Workers’ Compensation in processing Dr. Fabian’s request for
authorization of treatment.
       {¶10} Weingold’s second criticism is more convincing. Dr. Fabian last
examined claimant on July 2, 1997, and that evaluation generated three C84s.
Those prepared on July 16, 1997, and August 14, 1997, named cervical strain and
sprain as the lone work-preventing condition. Neither report listed any objective
findings to corroborate claimant’s continued allegations of pain.
       {¶11} The July 17, 1998 C84, on the other hand, was very different.
Suddenly, the July 2, 1997 examination also produced diagnoses of axial lumbar
and cervicothoracic pain, as well as para-axial spasm and polyneuropathy. Lumbar
and thoracic strain were now key players in claimant’s disability.
       {¶12} We view this discrepancy skeptically, and the time between the
examination and the completion of the C84 makes the latter even more suspect. We
have held that internally inconsistent doctor’s reports cannot be “some evidence”
supporting a commission decision. State ex rel. Lopez v. Indus. Comm. (1994), 

69 Ohio St.3d 445

, 

633 N.E.2d 528

. By extension, substantial inconsistencies between
two C84s generated by the same examination compel the same result. We find,
therefore, that Dr. Fabian’s July 19, 1998 C84 is not “some evidence” of TTC from
July 2, 1997, through February 5, 1998.
       {¶13} The award of TTC from September 10, 1998, through October 1,
1999, is also unsupported. On September 10, 1998, Dr. Brooks concluded that
claimant could return to his former job. On October 20, 1999, a DHO adopted that
report as persuasive. Weingold advocates the former as the date for termination of




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                             SUPREME COURT OF OHIO




TTC, and the commission, the latter, based on State ex rel. Russell v. Indus. Comm.
(1998), 

82 Ohio St.3d 516

, 

696 N.E.2d 1069

.
       {¶14} In Russell, the commission ordered TTC to continue contingent on
medical proof. While the claimant continued to submit medical proof, the employer
countered with evidence of maximum medical improvement—evidence ultimately
favored by the commission. Debate ensued as to the appropriate termination date—
the date of hearing or the earlier date of the proof of the basis for termination. We
chose the former, declaring that where a claimant was receiving “ongoing TTD
compensation pursuant to a prior order,” compensation must continue to the date
of the hearing. Id. at 521, 

696 N.E.2d 1069

.
       {¶15} Our litigants debate Russell’s applicability, i.e., whether claimant
was receiving “ongoing TTD compensation pursuant to a prior order.” We find
that he was not.
       {¶16} On August 6, 1997, a DHO ordered TTC to be paid from February 1,
1997, through March 17, 1997, and to continue upon submission of medical proof.
Claimant submitted proof of temporary total disability only through July 1, 1997,
and, when no further evidence was forthcoming, TTC ceased.             This is key.
Claimant argues that because he later sought to recommence TTC as of July 2,
1997, his receipt of compensation was ongoing. But earlier cessation of TTC
contradicts this. Only because he filed a new motion 12 months later seeking TTC
reinstatement did compensation start up again. That the two compensation periods
were contiguous does not make it an ongoing, unbroken chain of TTC.
Consequently, Russell does not apply, and extension of TTC to the date of hearing
was inappropriate.
       {¶17} The judgment of the court of appeals is reversed, and a writ of
mandamus is issued ordering the commission to vacate both periods of TTC.
                                                                 Judgment reversed
                                                                   and writ granted.




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                                   January Term, 2002




          MOYER, C.J., F.E. SWEENEY, PFEIFER, COOK and LUNDBERG STRATTON, JJ.,
concur.
          DOUGLAS, J., dissents.
          RESNICK, J., dissents.
                                   __________________
          ALICE ROBIE RESNICK, J., dissenting.
          {¶18} I would affirm the judgment of the court of appeals.
                                   __________________
          Calfee, Halter & Griswold, L.L.P., and Donald E. Lampert, for appellant.
          Betty D. Montgomery, Attorney General, and William J. McDonald,
Assistant Attorney General, for appellee Industrial Commission.
          Seaman & Associates Co., L.P.A., and Angelique M. Hartzell, for appellee
James Borawski.
                                   __________________




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