"i ICINAL
IN THE SUPREME COURT OF OHIO
STATE OF OHIO ex rel.,
CAMBRIDGE HOME HEALTH
CARE, INC./PRIVATE
CASE NO. 2008-1464
ORIGINAL ACTION IN MANDAMUS
RELATOR,
vs.
THE INDUSTRIAL COMMISSION
OF OHIO
R E C E:
and
LAURA HORVAT
RESPONDENTS.
CLERK OF COURT
SUPREME COURT OF OHIO
PARTIES' STIPULATED PRESENTATION OF EVIDENCE
MICHAEL J. REIDY ( 0012603)
MILLISOR & NOBIL CO., L.P.A.
9150 South Hills Boulevard, Suite 300
Broadview Heights, OH 44147
(440) 838-8800 - Telephone
(440) 838-8805 - Fax
mreidy@millisor.com
CHARISSA D. PAYER (0064452)
ASSISTANT ATTORNEY GENERAL
150 East Gay St., 22"d FI.
Columbus, OH 43215
(614) 728-3043 - Telephone
(614) 728-9535 - Fax
cpayer@ag.state.oh.us
Counsel for Relator, Cambridge Home
Health Care, Inc./Private
Counsel for Respondent,
Industrial Commission of Ohio
MARK M. STURIK (0000377)
THOMAS C. MAYS & ASSOCIATES
1370 Ontario Street, Suite 1520
Cleveland, OH 44113
(216) 475-0725
Counsel for Respondent-Claimant, Laura Horvat
AUC 1$ 2009
CLERK OF COURT
SUPREME COURT OF OHIO
PARTIES' STIPULATED PRESENTATION OF EVIDENCE
The parties, by and through counsel, and pursuant to S.Ct.Prac.R. X, §7, hereby
stipulate that the attached documents, indexed as Exhibits A - N and paginated PAGE 1
- 111, are true copies of documents filed with and before the Ohio Bureau of Workers'
Compensation with respect to the Respondent Laura Horvat's Claim No. 04-888455,
and that these copies shall constitute the evidentiary record before the Court in this
original mandamus action. The parties further stipulate that the record may be
supplemented by written agreement of all parties, by submission of certified copies of
documents from said claim file, or by order of this Honorable Court.
STIPULATED AND AGREED TO:
Micha J. Reidy (00 2603)
MILLISOR & NOBIL CO., L.P.A.
9150 South Hills Boulevard, Suite 300
Cleveland, OH 44147-3599
(440) 838-8800 - Telephone
(440) 838-8805 - Fax
mreidy(a) millisor.com
Counsel for Relator, Cambridge Home Health Care, lnc./Private
/s/ Charissa D. Payer (per phone consent 8/14/2009)
Charissa D. Payer (0064452)
Assistant Attorney General
150 East Gay St., 22nd Floor
Columbus, OH 43215
(614) 728-3043 - Telephone
(614) 728-9535 - Fax
cpayer(c)aq.state.oh.us
Counsel for Respondent, Industrial Commission of Ohio
/s/ Mark M. Sturik (per phone consent 8/14/2009)
Mark M. Sturik (0000377)
Thomas C. Mays & Associates
1370 Ontario St., Suite 1520
Cleveland, OH 44113
(216) 475-0725 - Telephone
marksturik&sbcglobal.net
Counsel for Respondent, Laura Horvat
2
t
CERTIFICATE OF SERVICE
Copies of the foregoing Parties Stipulated Presentation of Evidence, Index of
Exhibits, and Exhibits A - N were mailed by regular U.S. mail, postage pre-paid, on this
17th day of August, 2009 to:
Charissa D. Payer, Esq.
Assistant Attorney General
150 East Gay St., 22"d Floor
Columbus, OH 43215
Counsel for Respondent, Industrial Commission of Ohio
and
Mark M. Sturik, Esq.
Thomas C. Mays & Associates
1370 Ontario St., Suite 1520
Cleveland, OH 44113
Counsel for Respondent, Laura Horvat
Mich el J. Reidy
3
IN THE SUPREME COURT OF OHIO
STATE OF OHIO ex rel.,
CAMBRIDGE HOME HEALTH
CARE, INC./PRIVATE
CASE NO. 2008-1464
ORIGINAL ACTION IN MANDAMUS
RELATOR,
vs.
THE INDUSTRIAL COMMISSION
OF OHIO
and
LAURA HORVAT
RESPONDENTS.
INDEX OF EXHIBITS FOR PARTIES'
STIPULATED PRESENTATION OF EVIDENCE
EXHIBIT DOCUMENT(S) PAGE S
A Respondent-Claimant Laura Horvat's First Report of 1
Injury in Claim No. 04-888455 filed February 4, 2005
B Relator-Employer's correspondence dated January 25, 2
2005 accepting the claim for "sprains and strains
of the right wrist and hand"
C Respondent Industrial Commission of Ohio's Record 3-4
of Proceedings dated October 4, 2006 noting
Relator's accepting the claim for the additional
allowance of "aggravation of pre-existing arthritis
of the right wrist"
D Respondent Laura Horvat's C-86 application for 175 5
weeks of disability for loss of use of the right hand
filed February 25, 2008, including:
. Medical report of Dr. Todd Hochman dated
February 14, 2008
6-7
E Respondent Industrial Commission of Ohio's Record 8-9
of Proceedings (DHO) dated May 15, 2008 denying
the application for loss of use of the right hand
4
F Respondent Industrial Commission of Ohio's Record
of Proceedings (SHO) dated June 13, 2008 granting
the application for loss of use of the right hand
10-11
G Relator's Notice of Appeal of SHO Order with Brief in
Support filed June 30, 2008, including:
12-24
• Correspondence from Dr. Michael Keith
dated January 21, 2008
• VoCare Services, Inc. Status Update Report
dated January 30, 2008
• MetroHealth therapy records
• Functional Capacities Evaluation by Barbara
Hornbeek, PT dated May 7, 2008
• Medical record review by Dr. Scott Singer
dated June 30, 2008
• Copies of legal authorities attached to Brief
in Support
25
26-29
30-42
43-48
49-50
51-91
H Respondent Industrial Commission of Ohio's Order
dated July 5, 2008 refusing Relator's appeal
92-93
I Medical record of Dr. Michael Keith dated August 5,
2005
94
J Medical report of Dr. Rex Dinsmore dated October 23,
2005
95-96
K Medical report of Dr. R. Scott Krupkin dated December
14, 2005
97-99
L Medical report of Dr. Michael Magoline / Crystal Clinic
100-102
M Correspondence from Dr. Michael Keith dated October
5, 2007
103
N Medical record review by Dr. Donato Borrillo dated
November 2, 2007
5
104-111
a
WARNING:
Any person who ob©^ns compensatlon from
BWC or seN-msuring anploye» by.
knowrngty misrepresenong or conceabng hca,
na4mg faJse sraasnenqnr accepong corrQensacon
to wh¢it heJshe ts no[ enudcd,is zubject tc felony
criminal prosecuuon for ffiaud
First Report of an
Injury, Occupational
Jeftd WcrlretY tempensatfan
euilt with yov In mind,
--'
Disease or Death
For fuscer serviee
Complete as much of all four sections of this form as possible,Type or print in black or blue ink (ftC :913SE1
Last Name. Ftrvt Name, Middle Inmal
Horvat Laura
Sooal Secunr Nuniber
Home MzrhngAddress
3880 Grafton Road
---..
^ Srare
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Cny
9-dgrt _7_P
Codc -Brunswick
44212
OH
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.
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❑ Female
Marital Stacus
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ODnorred
Cououy dddfcrmt
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❑ Wldawed
Date ol &roh
12_^
9-19
Number ot Depcndentz
-
Deparunmt Name
Whac days of che week do you usually work
Wage Rate U Hour O Month ❑ Week
RegWxrwork l ♦ uurs
USun OMon fJTues OWed OThur OFr. USx[ FromTu
S Pcr OYear OOther
Have you been offered or do you expect to receive payntenc lor sha claim from anyone
Occupation or Job Tale
other ^hxn thc Ohio Bureau of Workeri Compensanon or the employerr
❑ YES ONO
Home Heal t h
I um appiymg fur recugnn.on of my <Imm uoder rhe Onro m ekaua0medrd,prydrobg<d,mdlwqythwvc mfarmmron
Workers Compensmmn Act fw work-.elored qunes Ihul I dN ihm u rtloted to nry eob.eri compensorron ciovn to rhe Ohio
rms purpomH mT2c I requca prymenr fur cmipcreorm nndlnr 6urenu a(NUrku. Campensormn rhe fndusmal Gnmmnuon
medcdr.pernesovNM.obkDrtttpoyment(i)mMeprovdrrs ofOhin.Ihtemployerktmdmthistlamr,NmemployerS
ofony medcalsu, ves oreouthwrzed Iunderstondtharlum
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.
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Time of In1,ury
If faul.grve dam of death
ll l ;-0-u_ OAM OPM
Date o11n1urylDisease
1
Tclephone Number Work Nmnber
Q - 15 - 2004
Datn Last Worked
N.C.L.T.
Dxre Remmed ;o Wo
Dace Employer NavBed
Accident Locamn ( street address)
Dam H.red
Sure Where Hired
City
Stare
Wav plxce of xecidem or exposure Y D
'-^ ES NO
an em lo er's prenz¢es+
Type of Inlurylomease and Pzrt(s) oi BodyAHecsed
( For example sprznn of lower left back, erc )
Descnpuon olAccident ( De[crrbe the sequence of events ehat
directly mlured the employee, or caused the ditease or death)
Whi1alif-tiiLg-pa.tient,._ felL_snap__and_pairL_in __ Strain rnht
wr; ^t _and_
See attached_letter _ frQm
PhyziuanlHcalrh{are Providcr Name
[ ltPhOONumber
SveczAddress
Fax Number
^q
racc
Oiagnoso(es) Incl.de ICO-9 Code(s)
9dign ZIP Code
Will this inudent cause the inlured worker m miss
ei ht or more days of workr
OYES ONO
Provuder Signaturc .
Is this injury causally related (o the
mduztnzlinadend
❑ YES ONO'
Date
BWC Pimada Numbrr
Employer Name
Policy Number
Cambrid e H
InivalTrczumenr Uzce
Care
MzihngAddress(NumberandSsreec- GryorTown.Ssate,andZlPCode)
U Employer is Scif-Inrvr'og
J O O O ri 3 7 9 _O , O Inprred Worker is Owner/PxrtncrlMember of F
Coumy
4085 Em B^'^aL.$W3y ..
Locauon, if diHerent from mailing addrest
Telephone Number
Fax Number
CENTIFICATION-Theemploycr
c eruries dut the facu m thn
applicanon are correcc and valid
Mmu.>I Numbcr
Federal ID numbcr
^HEJECTION -Theemployer
rejeces the validity of thrs daim
tor the lollowing rea[on(s) below
^ CLARIFICATION -The employer clarifies
and zllows the clalm for the condmon(v) below
See-attached letter
Employer Signamre andTtle
EXHI BI"F` Jo( Com; :nes C-1, C-2. C 3, C-6, (-50, C-51, UD 1, 00 1 22)
ate
OSHA Case Nnmber
B7lC-1]ul (3ev Apnl 3, 2000) This farm meets 05NA 101 reqtorements
Page 1
'"N25.2C05 10:56AM CAMBRIDGE SUPPORT
A
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January 25, 2005
Mr. Mark Sturik
1520 Standard Building, 15`h Floor
1370 Ontario St.
Gleveland, OH 44113
Sent via facsimile only (440) 475-5890
f2E: Laura Horvat
,
Dear Mr. Sturik:
i am In receipt of your letter dated January 13, 2005, regarding your
represBntation of Laura HQrvat for her workers' compensation claim. The allowed
conditions'of her claim are as follows:
842.00 -- Sprains and strains of wrist and hand
842.10 - Hand, unspecified site
Please send any further communication to my attention at the following address;
Cambridge Home Health Care
4085 E.mbassy Parkway
Akron, OH 44333
(330) 888-1922
(330) 988-1080, fax
Thank you.
rely,
inda Percyhski, SPHR
Director of Human Resources
Self Insured Policy.Number#20005329-0
EXHIBIT B
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Page 2
The in(itistrial (:omntissiun of Ohio
I2ECORI) OF PROCEEDINGS
Claim Number: 04-888455
LT-ACC-SI-COV
PCN: 2062541 Laura Horvat
Claims Heard: 04-888455
LAURA HDRVAT
382 STABLE DRIVE
LAGRANGE OH 44050
Date of Injury: 10/15/2004 Risk Number; 20005329-0
EX PARTE ORDER
This claim has been previously
WRIST AND HAND.
allowed for: SPRAINS AND STRAINS OF RIGHT
C-86 Motion filed by Injured Worker on 09/05/2006.
Iss(je: 1) Additional Allowance - AGGRAVATION OF PRE-EXISTING ARTHRITIS OF
THE RIGHT WRIST
2) Authorization Of Treatment/Appropriate Medication - SURGERY
The 09/29/2006 hearing is cancelled as the self-insured employer (letter of
09/28/2006) has accepted claimant's C-86 request to additionally recognize
AGGRAVATION OF PRE-EXISTING ARTHRITIS OF THE RIGHT WRIST.
The Self-Insured employer is hereby ordered to comply with the above
findings.
Typed By: kjb
Date Typed: 10/02/2006
Date Received: 09/06/2006
Findings Mailed: 10/04/20D6
Joseph Laszcz
District Hearing Officer
Electronically signed by
Joseph S.I_aszcz
The parties and representatives listed below have been sent this record of
proceedings. If you are not an authorized representative of either the
injured worker or employer, please notify the Industrial Commission.
04-888455 ID No: 14465--90
Laura Horvat Thomas C Mays
382 Stable Drive 1370 Ontario St Ste 1520
Lagrange OH 44050 Cleveland OH 44113-1708
EXHIBIT C
Page 3
DHOINF
Page
1
kjb/kjb
'1'he lndustrial Conunission of Ohio
RECORD
OF
PROCEEDINGS
Clain Number: 04-888455
ID No: 1825-80
Risk No: 20005329-0
Cambridge Home Health Care, Inc/Pri Benefits 1 Group
4085 Embassy.Pkwy 250D1 Emery Rd Ste 340
Cleveland OH 44128-5627
Akron OH 44333-1781
ID No: 20785-91
Willacy Lo Presti & Marcovy
1468 W 9th St Ste 700
Cleveland OH 44113-1220
BWC, LAW DIRECTOR
EXHIBIT C
DHDINF
Page
2
kjb/kjb
Page 4
and sr.iv^r^ Pinvldnr
MOTION
Ohio'Bureau Of Workers' Compensation
INSTRUCTtONS'
• This fonn is to be used by the mtured worker or ernpfoyer andlor their authorized representatives to request a
decision by the Bureau of Workers' Compensation or the Industrial Commission that cannot be accomplished
through any other form or application
This torm is NOT TO BE USED BY HEALTH CARE PROVIDERS OR MANAGED CARE ORGANIZATIONS
Health Care Providers or Managed Care Organrzattons must use form C-9, Physician's ReportlTreatment Plan for
N
7ndusVral or Occupatronal Disease
^
Proof must be submitted with this form
^
ntured Worker Name
Address
Laura Horvat
clty , State, Zip
382 Stable Drive
Claim Number
04-888455
Lagrange, Ohio 44050
This MOTION is a request to consider the following
The Claimant respectfully requests she be awarded 175 weeks of permanent
partial compensation (schedule B) for loss of use of the right hand pursuant
to February 14, 2008 medical report of Dr. Hochman attached and further
information contained in file.
In support of this MOTION, the following evidence is tncluded (identtfy documents)
February 14, 2008 report of Dr. Hochman
Stamp
THOMAS C. MAYS, ATTORNEY
1520 Standard Bidg.15th ftoor
1370 Ontarlo Street
Clevetand, Ohio 44113
ID # 14465-90
Stgned T u^t^N aNOWHOtN
❑ Injured Worker
EXHIBIT D
Date Signed 2-
BQOZ
U^6^164ArZZ BLXIAuthortzed Representative
❑ CEO/BWC Admtnistrator
t,i ^ /19 J ^ )34
C-86
Page 5
Ul 002/003
02/13J2006 10 27 FAX 12162528722
WESTPARK OCCUPATIONAL MEDICINE & THERAPY
TODD S. HocHMAN, M.D.
]NT5RN.1L MEbICINL' & FYDLj712ICS
4367 Rocky River Dr., Suite 100
Cleveland, OH 44135
FAX 216-752-8722
Plwnc 216-252.8S7Z
February 14, 2008
Mark Stunk, Esq
Derby Professional Burlding
5706 Tumey Road, Suite 103
Garfield Heights, Ohio 44125
Fax: 216-475-5890
REGAROING:
LAURA HORYAT
CLAIM NO.. 04-888455
INJURY DATE: 10-15•2004
Exwnt DA'tE:
0244-2008
ALLOWANCE: RIGHT WRIBT ARTHROPATHY ( 716.93); RIGHT WRIST 8PRAINISTRA4N (842.00); RIGHT HAND
SPRAtNlSTRAfN ( 842.10)
History of Injury
Ms Horvat is a 51-year-otd female who, on the above stated date of injury was working for Cambndge
Home Health Care as a nursa's aid when, in the process of lifting a patlent with multtpte sclerosis, she
developed severe pain throughout the nght wrist and hand Ms Horvat attempted ice without significant
relief. She then followed up at On The Clock Care where she was treated conservatively wlth physical
therapy and prescription medications Despite the conservative treatment, Ms. Horvat remained
symptomatsc. Ms. Horvat eventuatly came under the care of Dr. Keith, a board certifled orthopedic hand
surgeon Reportedly, Dr Keith ordered a bone scan, which revealed the arthopathy Ms. Horvat had an
arthrodesis performed an October 26, 2008 A second right wrist surgery was perforrned on July 19,
2007 Ms Horvat completed post-operative rehabilitation but presents today continuing with significant
nght wrist and hand symptomatology
Presenting Complafnts
Ms Horvat presents today complaining of a sharp stabbing pain as wetl as an aching dull discomfort
throughout the dght wnst and hand. She describes weakness throughout the hand Her symptoms are
such that she has difficulty lifting and carry+ng heavy tterns as welf as grasping and holdtng objects with
the nght hand. She has difficulty sleeping undisturbed and performing routine dally activities She has
had to curtad her recreatronai activities It is important to note that Ms Horvat is a nght-hand-0ominant
individual Since the October 16, 2004 Injury and subsequent surgeries, Ms Horvat has been forced, for
all intents and purposes, to use the left hand for all routine activiGes Spectflcally, Ms Horvat reports that
she is unable to open a door wrth her rLght hand Ms Horvat currently utllizes her left hand to manipulate
utensils while eating. Ms Horvat now uses her left hand for all personal hygiene. Ms. Horvat reports that
she has to turn her oar key with her left hand
Of note, paperwork for today's examination was completed by a friend of Ms Horvat's
EXHIBIT D
Page 6
^ 003; 003
02/19/2008 10 28 f0.X 12162528122
Page 2
REGARDING; LAURA HORVAT
CLAinl No.: 04-888455
10-15-2004
INJURY DATE:
Physical Examination
Examination of the right wrist and hand reveals that the skin overlytng the nght wrist and hand is
intact There is a well-healed scar noted over the dorsal aspect of the right wrist and hand The right
wrist and hand are extremely cool to the touch There Is significant tenderness noted throughout the nght
wnst and hand There is a flex on conhadure noted throughout the PIP joint of the right fifth digit Handgrip is s gn i cantly diminished on the nght in companson to the left There is atrophy noted throughout
the musculature of the right hand There is a sensory defic t noted throughout the right hand; tnoreso
throughout the fourth and fifth digits. Capillary refill is intact Distal pulses are intact Range of motion
throughout the nghtwrist is essenttatly zero Pincer-grasp was extrernely dtftlculty.
Discussion
I have had the opportuntty to obtain a history, review some medical records and perform a physical
examination on Ms. Laura Horvat Based on the history of injury as reported by the pattent as well as the
objective findings noted during today's physical examinatton, it is evident that Ms, Hon+at continues to be
significantly symptomatic from the work Injury that occurred ori October 15, 2004 Despite two surgeries
and post-operaUve rehabiiitatton, Ms Horvat utd¢es her left hand fot essenttally all routine daily acttvtties.
Based on today's examination, I can state to a reasonable degreo of medical certainty that, for all intents
and purposes, Ms Laura Horvat has lost functional uae of the nght wrist and hand
lf you should have any questions, please do not hesitate to call
Stncerely,
TSH/ksw
cc Thomas Mays, Esq
EXHIBIT D
Page 7
7'he ln(Justrial Cornmission of Ohiu
RECORD Oh PROCEEDINGS
Claim Number: 04-888455
LT-ACC-SI-COV
PCN: 2081021 Laura Horvat
Claims Heard: 04-888455
LAURA HORVAT
362 STABLE DR
LAGRANGE OH 44050-9654
Date of Injury: 10/15/2004 Risk Number: 20005329-0
This claim has been previously allowed for: SPRAINS AND STRAINS OF RIGHT
WRIST AND HAND; AGGRAVATIDN OF PRE-EXISTING ARTHRITIS OF THE RIGHT WRIST.
This matter was heard on 05/08/2008 before District Hearing Officer Rhonda
Patsouras pursuant to the provisions of Ohio Revised Code Section 4121.34
and 4123.511 on the following;
C-86 Motion filed by Injured Worker on 02/25/2008.
Issue: 1) Scheduled Loss/Loss Of Use - RIGHT HAND
Notices were mailed to the injured worker, the employer, their respective
representatives and the Administrator of the Bureau of Workers' Compensation
not less than 14 days prior to this date, and the following were present for
the hearing:
APPEARANCE FOR THE INJURED WORKER: Sturik, Claimant
APPEARANCE FOR THE EMPLOYER: Marcovy
APPEARANCE FOR THE ADMINISTRATOR: N/A
It is the order of the District Hearing Officer that the C-86 Motion, filed
by Injured Worker on 02/25/2008, is denied.
District Hearing Officer finds that Ohio Revised Code 4123.57 (B) provides
compensation for claimant's who sustain a loss of an enumerated body part by
amputation or loss of use.
In State ex rel. Gould Inc. vs. Indus. Gomm., (1998), 4D Ohio St. 3d. 323,
the Court held that a loss of use...means to the same extent as if by
amputation. (District Hearing Officer also cites State ex rel Alcoa Buildiny
Products v. Indus Comm., 102 Ohio St. 3d. 341(2004),
State ex rel Gassman Y. Indus. Comm.(1975), 41 Ohio St. 2d. 64, and
State ex relWalker v. Indus. Comm.(1979), 58 Ohio St. 2d. 402.)
After review of all of the evidence on file and testimony at hearing,
District Hearing Officer finds that claimant has failed to establish that
she has sustained a total loss of use of the right hand and therefore the
request for 175 weeks of compensation pursuant to Ohio Revised Code 4123.57
(B) is denied.
District Hearing Officer further finds that the 02-14-2008 report of Dr.
Hochman fails to establish total loss of use of the hand. District Hearing
Officer finds that the records of Dr. Keith through 01-21-2008 document
some, albeit limited use of the right hand, which has been confirmed at
hearing through testimony of the claimant. District Hearing Officer finds
the evidence and testimony at hearing revealed claimant could perform some
tasks and/or activities of daily living and could also write her name with
her right hand.
EXHIBIT E
DHOSI
Page
1
jd/jd
Page 8
lhclnduslrial Comroisxion oC Ohin
RECORD OF PROCEEDINGS
Claim Number:
04-888455
Based upon the totality of the evidence noted, District Hearing Officer
denies the requested award for loss of use.
The Self-Insured employer is hereby ordered to comply with the above
findings.
A POA, IS ON FILE FOR THE ABOVE LISTED INJURED WORKER.
An Appeal from this order may be filed within 14 days of the receipt of the
order. The Appeal may be filed online at www.ohioic.com or the Appeal
(IC-12) may be sent to the Industrial Commission of Ohio,
Cleveland Regional Office, 615 Superior Avenue, N.W. - 7th Floor
Cleveland OH 44113-1898.
Typed
By:
jd
_
Date Typed: 05/09/2008 Rhonda Patsouras
Date Received: 03/25/20D8 District Hearing Officer
Notice of Contested Claim: 02/25/2008
Findings Mailed: 05/15/2008
Llectianicallysigned by
Rhonda Patsouras
The parties and representatives listed below have been sent this record of
proceedings. If you are not an authorized representative of either the
injured worker or employer, please notify the Industrial Commission.
04-888455
Laura Horvat
382 Stable Dr
Lagrange OH 44050-9654
ID No: 14465-90
Thomas C Mays
1370 Ontario St Ste 152D
Cleveland OH 44113-1708
Risk No: 20005329-0
Cambridge liome Health Care, Inc/Pri
4085 Embassy Pkwy
Akron OH 44333-1781
ID No: 1825-80
Benefits 1 Group
25001 Emery Rd Ste 340
Cleveland OH 44128-5627
ID No: 20785-91
Willacy Lo Presti & Marcovy
1468 W 9th St Ste 700
Cleveland OH 44113-1220
BWC, LAW DIRECTOR
NOTE: INJURED WORKERS, EMPLOYERS, AND THEIR AUTHORIZED REPRESENTATIVES MAY
REVIEW THEIR ACTIVE CLAIMS INFORMATION THROUGH THE INDUSTRIAL COMMISSION WEB
SITE AT www.ohioic.com. ONCE ON THE HOME PAGE OF THE WEB SITE, PLEASE CLICK
I.C.O.N. ANO FOLLOW THE INSTRUCTIONS FOR OBTAINING A PASSWORD. ONCE YOU HAVE
OBTAINED A PASSWORD, YOU SHOULD BE ABLE TO ACCESS YOUR ACTIVE CLAIM(S).
EXHIBIT E
DHOSI
Page
2
id/id
.,,1,1-, . , ,:,..,.^,,..,, Page 9
PCOVIa,^r
and SCrv1L1,
I
fhe Industrial ('ouiniission of Ohio
RECORD OF PROCEEDINGS
Claiin Number: 04-888455
LT-ACC-SI-COV
PCN: 20B1021 Laura Horvat
Claims Heard: 04-888455
LAURA HORVAT
382 STABLE DR
LAGRANGE OH 44050-9654
Date of Injury: 10/15/2004 Risk Number: 20005329-0
This claim has been previously allowed for: SPRAINS AND STRAINS OF RIGHT
WRIST AFD HAND; AGGRAVATION OF PRE-EXISTING ARTHRITIS OF THE RIGHT WRIST,
DISALLOWED FOR: LOSS OF USE OF RIGHT HAND.
This matter was heard on 06/11/2008 before Staff Hearing Officer Robin Nash
pursuant to the provisions of Ohio Revised Code Section 4121.35(B) and
4123.511(D) on the following:
APPEAL of DHO order from the hearing dated 05/08/2008, filed by Injured
Worker on 05/15/2008.
Issue: 1) Scheduled Loss/Loss Of Use - RIGHT HAND
Notices were mailed to the injured worker, the employer, their respective
representatives and the Administrator of the Bureau of Workers'
Compensation not less than 14 days prior to this date, and the following
were present for the hearing:
APPEARANCE FOR THE INJURED WORKER: Sturik, Injured Worker
APPEARANCE FOR THE EMPLOYER: Marcovy
APPEARANCE FOR THE ADMINISTRATOR: N/A
The order of the District Hearing Officer, from the hearing dated
05/08/2008, is vacated.
It is the order of the Staff Hearing Officer that the C-86 filed 2/25/2008,
is granted.
The injured worker is entitled to a scheduled loss of use award as she has
proven that she has sustained a loss of use of the right hand. The
evidence on file establishes that for all practical intents and purposes
the injured worker has suffered the loss of use of her right hand. This
finding is based on the results of a functional capacities evaluation that
was conducted on 5/7/08. The evaluator found that the injured worker could
not perform any finger or manual dexterity activities with her right hand.
The injured worker had no measurable grip strength with the right hand.
She could not complete fine motor skill testing as she was unable to grasp
pegs with her right hand. The injured worker was unable to type or to
write with her right hand. The injured worker testified that she did sign
her name using a wide pen, but that she had to employ the left hand as an
assistive device for the right hand. The evaluator noted that the signature
was not legible. The injured worker was unable to complete any pinching or
grasping functions of any weights when tested. The Staff Hearing Officer
finds this is sufficient to establish that the injured worker has lost
function of the right hand for all practical purposes. Payment of the
award is to begin as of 5/7/2008.
All proof on file was reviewed and considered.
An Appeal from this order may be filed within 14 days of the receipt of the
EXHIBIT F
Page 10
SH01
Page
1
klp/klp
The Induslrial Cummissiorn ol Oliio
RECORD OF PROCEEDINGS
Claim Number: 04-888455
order. The Appeal may be filed online at www.ohioic.com or the Appeal
(IC-12) may be sent to the Industrial Commission of Ohio,
Cleveland Regional Office, 615 Superior Avenue, N.W. - 7th Floor
Cleveland OH 44113-1898.
Typed By: klp
Date Typed: 06/11/2008
Robin Nash
Staff Hearing Officer
Findings Mailed: 06/13/2008
Electronically signed by
Robin Nash
The parties and representatives listed below have been sent this record of
proceedings. If you are not an authorized representative of either the
injured worker or employer, please notify the Industrial Commission.
04-888455
Laura Horvat
382 Stable Dr
Lagrange OH 44050-9654
ID No: 14465-90
Thomas C Mays
1370 Ontario St Ste 1520
Cleveland OH 44113-1708
Risk No: 20005329-0
Cambridge Home Health Care, Inc/Pri
4085 Embassy Pkwy
Akron OH 44333-1781
ID No: 1825-80
Benefits 1 Group
25001 Emery Rd Ste 340
Cleveland OH 44128-5627
ID No: 20785-91
Willacy Lo Presti & Marcovy
1468 W 9th St Ste 700
Cleveland OH 44113-1220
BWC, LAW DIRECTOR
NOTE: INJURED WORKERS, EMPLOYERS, AND THEIR AUTHORIZED REPRESENTATIVES MAY
REVIEW THEIR ACTIVE CLAIMS INFORMATION THROUGH THE INDUSTRIAL COMMISSION WEB
SITE AT www.ohioic.com. ONCE ON THE HOME PAGE OF THE WEB SITE, PLEASE CLICK
I.C.O.N. AND FOLLOW Tt{E INSTRUCTIONS FOR OBTAINING A PASSWORD. ONCE YOU HAVE
OBTAINED A PASSWORD, YOU SHOULD BE ABLE TO ACCESS YOUR ACTIVE CLAIM(S).
EXHIBIT F
SHOL
Page 2
klp/klp
„ ,. 3 .,,,I :> .,,,,,,I Page 11
=ua s. ,..,,.. rro.iacr
T he Induissisto
I (r'-012 U
m 0^TCKEp ON CAS NOTICE OF APPEAL
PI Com
of Ohio
04-868455
This fonn should be delivered il,(TJAL ^ CLAIM NUMBER
to the office where this decision took place. - -8190
SOCIAL SECURITY #
❑ Address on appeal is new
DATE OF INJURY
EmptoyersAddress
Injured Worker's Address
Phune
( i
Namc
Laura Horvat
10/15/2004
Name
Cambridge Home Health Care
Addiess
Address
4085 Embassy Parkway
382 stable Drive
City. SIa1e, Ztp Code IA{ County
I
].aGran e OH 44050
Phone
City, State. Zip Code
kron, OH 44333
t
Employer's Representative
Injured Worker's Representative
Name
Name
1'
Thomas
C. P]a s Es .
Appealed by
Willacy, LoPresti & Marcovy
❑ Injured Worker QEmployer
❑ BWC Administrator =
0
c7
^
Appealing Order of
g
c
a
Heard at (City) cl e v e lzn d z Oh.
❑ BWC Administrator
Date of Hearing: 06/1170II ° j
❑ District Hearing Officer
Date Order Received: 06^^ 1T
%^ ❑ Staff Hearing Officer
As a matter of law, SHO improperly and solely
ReasonforAppeal:
rPlied n;nn au ir9anra nnt pinor3 hy a phyGi.- i.an r.,
d°ternine a disability in a"los^ of use" claim
Howwouldyouliketheorderchanged:Order vacated and remanded for furthar
proceedings
Have you or do you intend to file new evidence not available at the last hearing?
® Yes
❑ No
To be completed by Self-Insured Employer.
❑
Compensation / benefts have or will be timely paid as mandated by R.C. 4123.511
'U Compensation 1 benefits will NOT be timely paid as mandated by R.C. 4123.511
Y NOTE: Failure to identify the necessary documents may result in a determination not to hear an appeal
at theCommission tevel. Documents identified on attached Document List
I hereby certify that I have mailed copies of this notice to the M injured worker's representative and / or D employer's
d a copy to the
representative (check one or both), on J i i 7 y 7 20 OB If there is no representative, I have m
injured worker and/or employer.
❑ Bycheckingthisbox,Icertifythatlamanon-attorneyrepresent i who as eena thoriz Ir edtofi
❑ Employer.
this appeal by the ❑ Injured Worker
p0e1la ignalure)
tC-52 EXHIBIT G
An Equal Ooportunity Employer And Service Provider
(Rev 9705)
Page 12
NOTICE OF APPEAI. (IC-12) ATTACHMENT
Necessary Bocument List as Required by R07-1-04
(1)
Identification of all the underlying adrninistrative orders from which the notice of
appeal is filed;
On February 25, 2008, claimant filed a C-86 requesting 175 weeks compensation for loss of
use of her right hand under R.C.4123.57(B). The BWC referred the request to the IC an March 24,
2008, by way of referral letter. DHO Patsouras, in an order mailed May 15, 2008, denied claimant's
"loss of use" request. [See, Exhibit "A", DHO order of 05/15/2008, hereto attached.] Subsequently,
claimant appealed the DHO's order. In an order mailed June 13, 2008, S11O Nash allowed claimant's
"loss of use" request. (See, Exhibit "B", SHO order of 06/13l2008, hereto attached.]
Pursuant to R.C. 4123.51 i(E), this is the employer's appeal of the SHO order mailed June
13, 2008, granting claimant's allowance of loss of use of her right hand.
(2) Identification of all relevant documents that are within the claim file and where
appropriate, citation to legal authority relied upon, to support the request that the
notice of appeal be accepted for hearing under Section 4123.511(E);
In support ofCambridge Home Health Care's Notice of Appeal are the following documents:
Employer's Brief in Support
Exhibit "A", DI IO order of 0S/15/2008
Exliibit "B", SI-10 order of 06/13/2008
Exhibit "C", Letter of Dr. Michael Keith
Exhibit "D", Status Update Report prepared by VoCare Services
Exhibit "E",Therapy Records from MetroHealth
Exhibit "F', FCE performed by Barbara Hombeek
Exhibit "G", Medical Review of Dr. Scott Singer % l n
(those authorities noted as "attached" are attached to the brief in support):
'D 3
0
R.C.4123.57
R.C.4123.511
o
Srnte ex rel. Noll v. Indus. Comm. (1991) 57 Ohio St.3d 203.
Ohio Admin. Code 4123-6-01(D).
Chapter 4755 of the Revised Code
R.C.4731.34.
K. C.4755.40.
(Attached.)
Zinn v. Leach (November 29, 1990), Champaign App. Nos. 90-CA-03, and 90-CA-08, unreported,
1990 WL 187466, citing, Burress v Park Cycle & Marine, Inc. (Nov. 7, 1988), Stark App.No.
CA-7492, unreported. ( Attached.)
-1-
EXHIBIT G
Page 13
R.C.4123.32
Ohio Admin. Code 4123-5-18.
Ohio Adniin. Code 4123-3-15.
aLhe Hearing Officers Manual, Memo E2, dated May 7, 200). Memo E2. (Attached.)
R. C.4121.32.
Cited in HN3, Stare ex rel. Stringer v. Hamilton Plastics (Franklin, June 25, 2002) 2002-Ohio-3255,
No. Ol AP-1157. (Attached.)
Cited inFN3, Sicklesmith v. Chesterhoist, et aL (2006), 169 Ohio App.3d 470, No. 05-CO-20
Stale ex rel. Miller v. bdus. Comm. (December 1, 2005), 2005 -Ohio- 6371, No. OSAP-214.
(Attached.)
State exreL HumilityHouse v. Indus. Comm. (Franklin, May 29, 2003), 2003-Ohio-5582, 03-LW4309 (Attached.)
z
0
c
W
U
EXHIBIT G
Page 14
BEFORE THE INDUSTRIAL COMMISSION OF O1I1O
LAURA HORVAT, CLAIM NO. 04 888455
Claimant,
t^
-vs-
EMPLOYER'S BRIEF IN SUTPOCT OF
CAMBRIDGE HOME HEALTH CARE ITS APPEAL OF THE STAFF-I-IEnl> ING, =
Employer. OFFICER'S ORDER, PURSU/SNT
R. C.4123.511(E)
BRIEF IN SUPPORT
I. PROCEDURAL HISTORY
On February 25, 2008, claimant filed a C-86 requesting 175 weeks compensation for loss of
use of her right hand under R.C.4123.57(B). The BWC referred the request to the IC on March 24,
2008, by way of refer7al letter. DHO Patsouras, in an order mailed May 15, 2008, denied claimant's
"loss ofuse" request. [See, Exhibit `A", DHO order ofoS/15/2008, hereto attached.) Subsequently,
claimant appealed the DHO's order. In an order mailed June 13, 2008, SHO Nash allowed claimant's
"loss of use" request. [See, Exhibit "B", SIiO order of 06/1312008, hereto attached.]
Pursuant to R.C. 4123.51 1(E), this is the employer's appeal of the SHO order mailed June
13, 2008, granting claimant's allowance of loss of use of her right hand.
H. STATEMENT OF FACTS
This is a workers' compensation claim, numbered 04-888455, before the Industrial
Commission of Oliio. On October 15, 2004, Mrs. Horvat suffered an injury to her right hand and
wrist while attempting to lift a patient during the course of her employment with Cambridge 14ome
Health Care (°Cambridge"). The three allowed conditions in this matter were: (1) Right Wrist
Arthopathy (716.93), (2) Right Wrist Sprain/Strain (842.00), and (3) Right Hand Sprain/Strain
-1-
EXHIBIT G
Page 15
(842.10).
On February 25, 2008, claimant filed a C-86 requesting 175 weeks compensation for loss of
use of her right hand. At the time of filing, Mrs. Horvat's treating physician was Dr. Michael Keith_
Dr. Keith never opined that Mrs. Horvat's hand was so disabled as to constitute a "loss." ln fact, in
his January 21, 2008, letter to Mrs. Horvat, Dr Keith told claimant she could return to work,
pending a vocational assessment, with a SIb lifting restriction. [See, Exhibit "C", Letter of Dr.
Michael Keith, hereto attached.] Further, during the requested vocational assessment ofMrs. Horvat,
the case manager found Mrs. Horvat could lift a can of soup with her right hand, sign her name
(although slowly), and was capable of returning to work. [See, Exhibit "D", Status Update Report
prepared by VoCare Services, hereto attached.] Other evidence on record did not indicate a loss of
use either. In Mrs. Horvat's physical therapy records from MetroHealth, the occupational therapist
notes claimant can make finger extension and flexion, can oppose thumb to index and middle fingers,
and has a right hand lateral pinch strength of 7 pounds (norm is 12.0 poundaj. [Se,@, Ex
m ^
"E",Therapy Records from MetroHealth, hereto attached.] The sole basis for claimant'o5equest?or
V.)
"loss" was the one time exam by Dr. Todd Hochman. _3
-J
The BWC referred claimant's C-86 to the Industrial Commission. In an order dated May 15,
2008, DHO Patsouras properly denied the "loss of use" claim stating:
,-
District Hearing Officer finds that the Ohio Revised Code 4123.57 (B) provides
compensation for claimant's who sustain a loss of an enumerated body part by
amputation or loss of use.
In State ex rel. Gould Inc. vs. Indus. Comm., (1998), 40 Ohio St. 3d. 323, the Court
held that a loss of use...means to the same extent as if by amputation. (District
Hearing Officer also cites State ex rel Alcoa Buildin Products v. Indus. Comm., 102
Ohio St. 3d. 341 (2004), State ex re1 Gassman v. Indus. Comm. (1975), 41 Ohio St.
2d 64, and State ex rel Walker v. Indus. C,omm. (1979), 58 Ohio St. 2d 402.)
EXHIBIT G
Page 16
After review of ait of the evidence on file and testimony at hearing, District Hearing
Officer finds that claimant has failed to establish that she has sustained a total loss of
use of the tight hand and therefore the request for 175 weeks of compensation
pursuant to Ohio Revised Code 412357(B) is denied.
District Hearing Officer further fends that the 02-14-08 report of Dr. Hochman
fuils to establish total loss of use of ihe hand Distnct Hearing Officer finds that the
recordr of Dr. Keith lhrough 01-21-2008 docvment some, afbeit limited use of the
right hand, which has been conftrmed at hearing through testimony of the claimant.
District Hearing Officer finds the evidence and testimony at hearing revealed
claimant could perform some tasks and/or activities of daily living and could also
write her name with her right hand
Based upon the totality of the evidence noted, District Hearing Officer denies the
requested award for loss of use.'
[See. Exhibit "A".]
Upon the employee's appeal, an FCE was performed. [See, Fxhibit "F", FCE performed by
Barbara Hornbeek, hereto attached.] This test was performed by Mrs. Barbara Hombeek, a physical
therapist. [Id.] TheFCE explains the tests performed. [ld.] The concludes with Mrs. Hombeek rating
the claimant's performance as "Medium" meaning the results were mostly substantiated, but
"[p] erformance on some activities was somewhat inconsistent, self-limited or associated with increase
symptom reporting in response to the exam." [Id. at 6.] Mrs. Hombeek also notes validity concems
regarding "unusuaUexcessive symptoms reports," "inconsistent strength results," "abnormal function
uninjured region," "refusal to attempt specific tests," and "increase symptoms following exam." [Id.]
On some tests, Mrs. Hornbeek notes that "testing on the right hand was not done." [Id. at 1.] At no
point does the FCE opine as to the extent of Mrs. Horvat's disability. No physician signed or
reviewed Mrs. Hornbeek's FCE The FCE was filed with the commission and, in an order mailed June
13, 2008, SIIO Nash found:
Emphasis added throughout, unless otherwise noted.
EXHIBIT G
Page 17
The injured worker is entitled to a scheduled loss of use award as she has proven that
she has sustained a loss of use of the right hand. 'l-he evidence on file establishes that
for all practical intents and purposes the injured worker has suffered the loss of use
of her right hand. This finding is based on the results of a functional capacities
evaluation that was conducted on 5/7/0S. The evaluator found that the injured
worker could not perform any finger or manual dexterity activities with her tight
hand. 'I'he injured worker had no measurable grip strength with the right hand. She
could not complete fine motor skill testing as she was unabie to grasp pegs with her
right hand. 'fhe injured worker was unable to type or to write her name with her right
hand. The injured worker testified that she did sign her name using a wide pen, but
that she had to employ the left hand as an assistive device for the right hand. The
evaluator noted that the signature was not legible. The injured worker was unable to
complete any pinching or grasping functions of any weights when tested. The Staff
Heating Officer finds this is sufficient to establish that the injured worker has lost
funetion of the right hand for all praclical purposes. Payment ofthe award is to begin
as of 5/7/2008.
[Exhibit "B".]
Pursuant to R C 4123.511(E), Cambridge EIome Health Care appeals the abRve-aingici)f
^_ SHO Nash.
^,
^-^
<-,
III. LAW AND AI2GUMElYT
A.
The Statf $earir^ Oifcer Made a Clear Mistake of Law: in Aivardine
Partial Permanent Disability Based Solely on Evidence Not Opif-d by a
Ph sician.
i. The StafT Aearina OlTicer Solelv Itelied UQon the FCE Performed bv a
Physical Therapist.
The commission must specify in its orders what evidence ha.s been relied upon and briefly
explain the reasoning for its decision. State ex ret Noll v Indus. Comm. (1991) 57 Ohio St.3d 203.
In the instant case, SHO Nash specifically stated, "This finding is based on the results of a functional
capacities evaluation that was conducted on 5/7/08." [Exhibit "B".J SHO Nash then explained [fs
reasoning by citing the FCE performed by a physical therapist. [Id.] The SHO makes no references
to any other evidence relied upon to make her determination. [Id. ) Pursuant to Nnll, SIIO Nash only
EXHIBIT G
Page 18
relied upon the physical therapist's FCE_
ii. A Phvsicat TheraQist is not a PhYsician.
Under the Workers' Compensation Act, a"physician" is,
[a]s defined in division (B) of section 4730.01 of the Revised Code, a doctor of
medicine, doctor of osteopathic medicine or surgery, or doctor of podiatric medicine
who holds a current, valid certificate of licensure to practice medicine or surgery,
osteopathic medicine or surgery, or podiatry under Chapter 4731. of the Revised
Code; as provided in section 4734.09 of the Revised Code, a doctor of chiropractic
who holds a current, valid certificate of licensure to practice chiropractic under
Chapter 4734. of the Revised Code; as provided in section 4731.151 of the Revised
Code, a doctor of mechanotherapy who holds a current, valid certificate of licensure
to practice mechanotherapy under Chapter 4731. of the Revised Code and who was
lieensed prior to November 3, 1985; a psychologist who holds a current, valid
certificate of licensure to practice psychology under Chapter 4732. of the Revised
Code; or a dentist who holds a current, valid certificate of licensure to practice
dentistry under Chapter 4715. of the Revised Code. A physician licensed pursuant to
the equivalent law of another state shall qualify as a physician under this rule.
Ohio Admin. Code 4123-6-01(D). A physical therapist does not qualify under the above definitions
ofa°physician." See generally, Ohio Admin. Code 4123-6-01(D); Chapter4755 ofthe Revised Code.
Further, any person who is not a licensed physician cannot legally make a medical diagnosis.
See, R.C.4731.34. Pursuant to R.C.4755.40(A), the practice of "[pjhysical therapy does not
include the meJical diagnosis of a patient's disability[.]" See also, Zinn v. Leach (November 29,
1990), Champaign App. Nos. 90-CA-03, and 90-CA-08, unreported, 1990 WL 187466, at 8(Court
holds physical therapists are precluded &om giving diagnostic opinions in testimony as well as in the
form of patient advice and communication.), citing, Burress v. Park Cycle & Marine, Inc. (Nov. 7,
1988), Stark App.No. CA-7492, unreported, at 4, (Court held R.C. 4755.40 precludes physical
therapists from giving medical opinions by "wander[ing] outside the statute to give a medical opinion
as to permanent injury[.]"); Ifonly licensed physicians can make a medical diagnosis as to a disability
and physical therapists are prohibited from making that determination, then it stands to reason
EXHIBIT G
Page 19
physical therapists are not physicians. By statute, Mrs. Hornbeek is not a physician and could not
(and didtot) opine as to the disability of the claimant_2
iii. Only Determinations as to the F;xtent of a Disability made by a Licensed
PhXsician are Considered Evidence upon which a Hearing Otiicer may
Rely
As stated above, only a licensed physician may make a medical diagnosis. See, R.C.4731.34.
Section 4123.32(E) of the Revised Code maintains that proposition through the workers'
compensation act stating that
[w)ithrespecttoanydeterminationofdisabilityunderChapter4123. ofthe Revised
Code, when the physician nutkes a determination based upon statements or
information furnished by the claimant or upon subjective evidence, he shall clearly
indicate this fact in his report.
The above requirement of a physician deterrnination is further supported by Ohio Admin. Code 4]235-18(A), which states that "no paynrent of eonrpensation shall be approved by the bureau in a
claim unless supported by a report oL physician duly efcensed to render the treatment." "Medical
evidence is required to substantiate the allowance of a disability or condition not previously
considered" Ohio Admin. Code 4123-3-15(B)(2)(b). These statutes dictate that a 6nding of
disability, and subsequent compensation, under any provision of the Workers' Compensation Act
must be supported by a physician'.s determination.
Not only is there a general requirement under the Act that a hearing officer support his
findings of disability on a physician's detemunation, but the R.C. 4123.57 requires it as well. Under
R.C.4123.57, when a request is filed with the BWC or upon referral to the commissjon, &--Mediclai'
4i
U
2 Mrs. Hombeek makes no detersnination as to the extent of"loss".'nor o^nes a_s" to
the disability of Mrs. Horvat. [Exhibit "F'.] The FCE merely explains the tests'she pefformed.
-6-
EXHIBIT G
Page 20
examirwtion may be requested by the BWC or the employer.' This examination is to be perfonned
by a physician. See, The HearinR Officers Manual, Memo E2, dated May 7, 2001. Memo E2,
pursuant to R.C.4123.57, requires
s#s
[tjhe Hearing Officer ** * to note in the order that the determination is based upon the
medical or clinic•al findings of a particutar doctor or doctors. Also Hearing Officers
are to note the reports of additional physicians, if appropriate.
It is the duty of the Hearing Officer to evaluate the physicians' ratings of impainnent
and issue the determination as provided by O.R.C. 4123.57."
a*s
[Id] By statute, the EIearing Officer's Manual is controlling authority as "no employee may deviate
from nranual procedures without autitorization of the section chief. " R.C.4121.32(A). DRO
Patsouras properly applied Memo E2, stating she relied upon Dr. Keith's opinions, then briefly
described his findings. [Exhibit "A".] DHO Patsouras also stated she did not rely upon Dr.
Hochman's opinion as it was insufficient to establish "loss." [Id.] The StaffHearing Officer, however,
wrongfully deviated from the requirement that his determination be based upon "medical or clinical
findings of a particular doctor or doctors." In his order, the SHO only referenced and relied upon the
report of a physical therapist, who is not a physician. As a physical therapist cannot diagnose a
' An FCE is not a medical examination, but "a series of tests used to assist the
examining physician in his assessment" State ex reL Stringer v. Hamilton Plastics (Franklin,
June 25, 2002) 2002-Ohio-3255, No. Ol AP-1157, 112, 34. "An FCE tests how well a person can
do certain work-related activities such as li$ing walking, squatting, bending, and range of
motion" Sicklesmith v. Chesterhoist, et aL (2006), 169 Ohio App.3d 470, No. 05-CO-20, ¶139.
The FCE Horvat attended was a series of tests to assess her "current physical capabilities."
[Exhibit "FCE", p. 1.]
` The Industrial Commission created the Heanng Officer's Manual pursuant to
R.C.4721.32, to adopt procedures and criteria for decision making. The commission was
specifically required by the legislature to adopt criteria for "award(s] under division (B) of
section 4123.57 of the Revised ('_orle." R.C 4121.32(C)(8). Hence, Memo E2.
EXHIBIT G
Page 21
disability, the SI-IO committed a clear error in adopting an FCE report without a physician's re^dew.
No precedent exists sttpporting the SHO's finding based solely on a physical therapist's FCE.
,Sta1e ex reL Miller v. /nche.s. Comm. (December 1, 2005), 2005 -Ohio- 6371, No. 05AP-214, a
factually analogous case, provides persuasive evidence that an FCE is ordy reliable to the extent its
views have been accepted by a physician. The claimant in Miller filed for'9oss of use" of his hand.
In Miller, however, there were two physician's reports, one ofwhich reviewed an FCE. The physical
therapist in Mller opined that the claimant's "hand is basically not useable for working activities."
Id. at ¶36. As to the FCE, Miller states that a physical therapist's opinion is reliable only to the
extent their view is accepted by the physician. Id. at ¶36 ("Moreover, physical therapist David
Kazee's opinion (to the extent that it is viewed as accepted by Dr. Aitken) ***"). See also, Stringer,
(In the determination of permanent total disability benefits, the SHO considered two physicians'
exams and an FCE by a physical therapist; however, in his order only relied upon the physician
reports to make the determination); State exrel. HumiliryHouse v. Indus. Comm. (Franklin, May 29,
2003), 2003-Ohio-5582, 03-LW-4309, at ¶21-30. (the commission relied upon a physician's
assessment of a functional capacity evaluation.) Unlike the facts in Miller, SHO Nash had no
physician's interpretation of Mrs. Horvat's FCE available; therefore, any findings contained within
the FCE cannot be deemed reliable.
The unreliability of the FCE has become more apparent since the commission's order dated
June 13, 2008 Since the date of the SHO order, the employer has obtained a physician's review of
medical records, including the FCE. [Exhibit "G", Medical Review of Dr. Scott Singer.] Dr. Scott
Singer specifically states
with a reasonable degree of medical certainty and probability ***[that] the results of
the 5/7108 functional capacity evaluation do not appear to be a valid indicator of the
-8-
EXHIBIT G
Page 22
claimant's current functional capabilities. The report document a "medium" validity
rating and noted that the claimant was self-limited in many of the activities. In
addition, she failed to demonstrate any grip strength capability at any of the five
settings on the dynamometer despite showing the ability to grasp a pen. As such, the
claimant appears to have made a less than full effort duiing the evaluation.
(I& at response to question 3.1 In Dr. Singer's opinion, "the claimant's cunent level of function does
not meet statutory definition for`9oss of use." [Id. at response to question 2.1 He further notes, based
on her medical records, that Mrs. Horvat has funetional capabilities with her right hand that include
her ability to move her fingers and to "grasp a wide pen."
B. CONCLUSION
By law, determinations ofdisability are solely within the province ofphysicians T'he workers'
compensation act is no exception. Because the hearing officerrelied solely upon a physical therapist's
report, not a physician's report, the hearing officer made a clear error of law in basing his order upon
unreliable evidence. The unreliability of an FCE without a physician's review has been documented
by case law and a subsequent review by Dr. Singer. Therefore, the July 16, 2008, must be vacated
in favor of Cambridge Home Health Care, Inc./PRI and remanded for further proceedings.
RespectfulLY Submi
OTHY A. Iv1?.RCbVY, ESQ. ( 0006518)
MICHAEL S. LEWIS, ESQ. (0079101)
WILLACY, LOPRFSTI, & MARCOVY
700 Western Reserve Building
1468 West Ninth Street
Suite 700
Cleveland, Ohio 441 13
T:(216)241-7740
F (216) 241-6031
Email: msl@wlmlaw.com
Attorneys for Employer
Cambridge ITome Health Care, Inc
EXHIBIT G
Page 23
CERTIFICATE OF SERVICE
1'he aforegoing notice of appeal, brief in support, and exhibits were mailed USPS first
class, postage prepaid to: Mr. Sturik, Counsel for Claimant, Office of'Thomas C. Mays, 1370
Ontario St, Suite 1520, Cleveland, Ohio 441 13 on the 1° day of July, 2008.
-10-
EXHIBIT G
Page 24
MetroHealtn
CASE
$Cllnnl nF MrOlCllaf
RI10IAF.1. W. K(ITI7, M.t).
Iland. $hnnldcr 8e t)ppcr Erircuiity
Coinplcx Paralysis Disordcrs
1i06 Merrnllexllh Drive
ClrvelauJ,Oli 34109-1994
Oifice(216)773-4399
FA X (21 6) 77R-.7690
7anuary? 1, 2008
Ms. LauraHorvat
3ZQ Stable Drive
LaGrang" 0I-1 44050
Dear Ms. Horvat:
At our last ottice visit we discussed the successful surgery in your wrist which nonetheless leaves eou with
restrictions and job choices. At the present time we are working through a vocational plan so that you can do a job
change into light clerical work. I can at tilis stage tell ynu that no further surgical management or treatment is :
required. The current plan that 1 consider you qualify for is a nonworking wage loss CI40 program and that you
should considerwork at the 5 Ib. ii;tine limit. Your MCD should assist you in obtainingjob placement. I hope that
this is an appropriate summary for where we stand reearding your retunt to work
Very Iruly yours,
(N^/l^ .'-v/J
Michael W. Keith, M.D.
Olthopaedic & Hand Surgery
MetroHcalth Medical Center
Southwest General Medical Center
MWl4'ca
cc: Linda Hunt RN, CItRn, VoCare Serviccs
Cambridge Home Health Care
Attorney Tltomas Mays
Exhibitc-
EXHIBIT G
Thc MctroHcalth System
2500 MevoHcaith Drivc, Clcvcland, Ohio '19109-1998
216 - 778 - 7800
Page 25
VoCare Services, Inc.
25001 Emery Rd. Ste. 320
Cleveland, OH 44128
(216) 514-1221
Fax: (216) 514-0706
.l anuary 10, 20(1R
To: leannetta Cross/Benefits 1
25001 Emery Rd. Suite 320
Cleveland OH 44128
Re: Laura Ilorvat DOI: 10-15-04
(;]aim: Laura Horvat--8190/04-88845S (SI) RTW Goal: DJDE
SS #: Allowed Injury: (842) Rt. Wrist Sprain,
(842.10) Hand Sprain
Status Update Report 1-30-08:
Summary:
Laura Horvat is 50-year-old rieht hand dominate female who sustained a rieht hand and wrist
- on 10-15-04, during her employ with Cambridge Home Health Care, a self-insured
iut^
employer, as a Home Health Care Aid. 71re claim has been allowed for (842) Rt. Wrist Sprain,
(842.10) Hand Sprain. Ms. Horvat states she is not comfortable returning to the transitional work
program at Cambridge and the physician of record has documented permanent restriction from
return to work as a home health aid. As an altemative to transitional work program at Cambridge
Home Health Care in the past, Ms. Horvat performed voluntary work for the United Way, a nonprofit agency. Specifically she worked for Faith in Action, an agency that cares for the Elderly in
Medina, primarily answering phones, coordinating resources for the elderly. She did this for 1.5
years and was paid wage continuation for 20 hours/week by the employer of record. Ms. Horvat
reports she loved this position and was valued at this agency.
Jeannette Cross of Benefits 1, the Third Party Administrator for this self-insured employer,
referred Ms. Horvat to VoCare Services, Inc. on 9/26/07 for medical case management and
ultimately vocational rehabilitation case management pending medical stability and release to
participate. She was initially contacted on 10/1/07 after obtaining correct phone number from the
employer of record. Initially, Ms. Horvat declined services. This case manager faxed letters to
the nhysician ofrecord, injua,-d worker a_*id attoraey of record eut!ining services and justification
for services. Ultimately the physician of record, Dr. Keith, forwarded a lcttcr documenting
recommendation for vocational rehabilitation services. An initial assessment with the injured
worker was ultimately conducted on 11/12/07.
Ms. Horvat was participating in occupational therapy (8-12 weeks @ 2X/week) for strengthening
and range of motion with goal of maximizing motion to the extent the fusions will allow. 'fhis
case manager attended a therapy session and consulted with the treating occupational therapist.
Exhibiti;?^
EXHIBIT G
Page 26
t.aura Horvat/_8190/04
Paee'_
•-155 (SI i ^cz JOoa4
Ms. liorvat indicated shc ltas, "no pain if I don't use rny hand"; occasional ache or tltrobbing at
rest; however with activities the pain can reach a 6-8 on a scalc of 1-10 with 10 representing thc
most severe pain imaginable.
Functionally, Ms. Horvat reports she is now functionally lcfi hand dominate as she is verv
limited in what she can do with the right hand. She reports she is unable to cut vcQetables or lilt
more than a can of soup with her right hand. She signs her name with her right hand, very
laboriously and slowly. She is now driving her car; however must get into the passenger side to
r^rn the key to start 4- engine, then get out and reenter the car on the driver's side. She reports
sitting, standing, walking, stair climbing are unimpaired- She hat difficulty sleeping- She is
independent in self care activities with some difficulty; however requires assistance with cooking
and household chores. She is unable to participate in her outdoor hobbies such as yard work. She
eniovs swinunin_e and readin_e. She renorts financial strueeies since tne tnrurv and renucuon ir,
income.
'Fhe employer of record has offered a permanent office position. Cambridge I-lome Health Care
understands Ms. Horvat has functional restrictions and is willing to accommodate the functional
limitations; however, Ms. Horvat has declined this position and during 12114107 office appointment
(case manager in attendance) her physician of record supported this decision due to the stressful
relationshin with the EUK. We further discussed that the treatinq OT opines Ms. Hotvat wili require a
one-handed job and how difficult it will be to find employment for one-handed/non dominate job with
different emplover. Dr. Keith aureed to FCE with uooer extremitv focus and aqreed to submit a C-9. While
Dr. Keith disagreed with maximum medically improved status, he did encourage her to proceed with
oermanent partial imoairment aaplication. Dr. Keith later submitted Medco statina mav lift up to 5# witti
right upper extremity.
Services Offered this Period:
1. Medical Case Management Services
2. Vocatioual rehabilitatiornplan development
Activity since Last Report:
This case manager discussed functional capacity evaluation with upper extremity focus with two
providers and reviewed samples of their reports. (Approved C-9 pending)
On 12/20/07 this case manager finally made telephonic contact with Doris K. at Faith in Action.
We discussed arrangement of "volunteer work" (altemative to transitional work program with
employer) wlth ihe hope Of mvving Laura into a po;ition urere. Doris indicated Ivis- iiorvat was
very valued while she worked there and was, "gifted" in working with the clients. However with
her understanding of Ms. T-lorvat's present limitations (as discussed with injured worker), she
does not feel they could accommodate her present functional limitations. However; on further
discussion agreed if Ms. Horvat could be trained on Voice Recognition Software and adaptive
writing techniques, she could indeed use her in a volunteer position. Additionally she felt there is
a good possibility of developing a work opportunity there with a Work Trial.
EXHIBIT G
Page 27
Laura Ttorvat/_8190/04 v455 (SI) Stz indarc Reoott
Page
3
1-
This was discussed in detaii with Ms. liorvat on 1-9-08; however Ms. Horvat was very ill with
upper respiratory illncss. As agrecd w-ith injured worker, this case manager rcferred the iqjured
worker to the Bureau oC Vocational Rehabilitation for collaborative plamting. (BVR could fmid
the training and adaptive equipmcnt).
On 1/28/08, Ms. Horvat contacted this case manager stating she was not going to the
scheduled appointment at BVR on 1/29/08. She had discussed the potential benefit with her
attorney of record, who suggested BVR would help her get an $8.O0H our job as a receptionist.
She is adamant she can find ajob such as this on tier own, without any agency assistance. She
further i.n.dicated she ap.d her significant other are down to only one vehicle due to financial
difficulty and that she has no transportation as he works full time.
After a lengthy discussion regarding possible plan (collaborative with BV R) for preparing for
return to work such as work adjustment program with ergonomic specialist assisting to deterrnine
necessary adaptive equipment and method needs (such as voice recognition software) and
training, job seeking skills training and supported job search to optimize her return to work
potential; she inquired if BVR could provide transportation. I suggested she contact the agency
to inquire as I am not aware of anyone who provides this service for her situation. She again
contends she can find a job on her own.
After lengthy discussion, I acknowledged participation in vocational rehabilitation focused
services is voluntary and she has the right to decline. She indicated, "That is where I think I am;
however let me think about it and I will call you by the end of the week".
Recommendations:
• Continue medical case management as desired by seN insured employer; however case
manager questions if there is value added at this point in the process, if injtued worker is
not interested in pursuing assistance with retum to work. Occupational therapy has been
discontinued according to Ms. Horvat.
• Await injured worker' decision regarding interest/ability to participate in vocational
rehabilitation focused services. As this service is voluntary, she has the right to decline.
The physician of record has, according to Ms. Horvat, reinforced she needs to "work with
MCO (tlris case manager) and return to work (different employer) to a job with lifting
rcquirement of 5#. She states he wrote another letter to this case manager (not yet
received).
• Should Ms. Horvat decline the services outlincd, this case manager has nothing else to
offer in the way of vocational rehabilitation services as participation is voluntary.
• Should Ms. Florvat agree to proceed and is able to overcome the transportation barrier the
following services are recommended:
• Funciionai capacity evaluation wiih upper extremity focus.
• Community Based Work Assessment, with ergonomic specialist input, at United
Way/Faith in Action/office setting, which may lead to Work Trial and/or On The
Job Training; or work adjustment program for clerical training with ergonomic
input, adaptive equipment/methods.
• Ms. Horvat will require assistance with placement into a different job and will
benefit from job seeking skills training and job placement and development
services to assist her in developing a resume and finding appropriate employment
EXHIBIT G
Page 28
t955 t^il ^ce J oaa:e •Lanra Horva^8190104
Paee
4
1-3o-08
with in her fwtctional abilities aitd skill sets if the placement at tlnitcd Way does
noi result in a job offer.
Opinion:
It is the opinion of this case manager that Ms. Horvat remains an appropriate candidate for
rnedicaUvocational case management services. 'Ihe physician of record has indicated readiness
for vocational focus at this time and reconunended different jobldifferent employer. The
employer of record is suppo:uve of this goal as well. `.'hile J:e functional barriers a:e
signiflcant, Ms. Horvat has demonstrated skills in an office setting and has demonstrated good
organizational skills and the softer skills required in a customer service/office setting. Therefore
it is the recommendation of this case manager we proceed with vocationally directed services
if/when Ms. Horvat is agreeable to do so; otherwise tlris case manager recommends
consideration of closure of the referral as this case manager has nothing clse to offer.
Thank you for this referral; I will keep you updated on status of Ms. Horvat's decision regarding
vocational rehabilitation participation-
Sincerely,
/
'
(?(,a-& ;qf.r. Zn, c'ReJ
Linda Hunt, RN, CRRN
MedicaURehabilitation Case Manager
EXHIBIT G
Page 29
The'vfetr-oIlealth System ^ 2500 troHealth Drive j Cleveland OH 4410' '? ] 6= 775-7800 15100003
P roce d ure Vi si t
Laura L Horvat (MR# 5266472; D06: 1223011956) 1010812007 2:00 PM in ASC OCC
THERAPY wlth Carol Presutto, OTR/L [Z521
F'ncqtlLterlnfarmation
__
Encountsr A[Vizitf! De ertment
074860650 I23860829 IASC OCC THERAPY
Flace of service ftaferrin
jovidar
MH OUTPATIENT SURGERY KEITH, MICHAEL W. [2006]
CENTER
previous Vl^lS
Time
10:15 AM
Date
70105/2007
DeparLnenk '
Asc Ph sician Offlces
--
Provlder
Dr, Michael W. Keith, MO
RRRR^on_FoL isit
Reason
OT Evaiuation [1077]
CommeM
VV^ ' ns
L.MP
I
Postmenopausali
Progress
Notes
Carol Presutto, OTRIL Mon Oct 8, 2007 4:38 PM Signed
Visit #: 1116
Referring Provider: Michael W. Keith, MD
Diagnosis: Sprain right thumb and wrist with ligament injury during a lift of a
patient at work 10/15/2004.
Surgery: 7119107 Right wtist art.hrodesis
10/26/2006 Arthrodesis (four corner .i.nz:ercarpal
fusion with scaphoid autograft) right wrist, carpectomy
scaphoid (lunate fossa and lunate cartilage intact), EP?,
released, PIN resected for pain control, repair dorsal
ligaments from scaphoid to 1-.inate to capitate
Payar: WORKER'S COMP - SELF INSURED Plan: SELF INSURED EMPLOYERS
Product Type: Worker's Comp
Patient seen for
- Evaluation
- 20 minutes of therapeutic exercises consisting of: NOV 0 5 2007
desensitization
strengthening
scar management
finger Flexion place and holds
precautions
Identification was verified by patient verbalizing her name and date of birth.
50 year old right hand dominant female refened to Occupational Therapy for evaluation
and treatment.
PRECAUTIONS: No heavy lifting, NWB RUE
Past Medical I Surgical History:
EXStibit&
EXHIBIT G
zo a TICI 029 OCE
H 3WOH 3J0188NV0 ^ E7TOT
^oo '^a^e 30
'Fhe MctroHealth System 1251 QctroHealth Drive t Cieveland pA 44' 216- 774-7300 15100003
Past Medical History
(BWC) RT-WRIST SPRAIN NOS
Comment: 10/15104 RT WRIST
(BWC) RT-HAND SPRAIN NOS
Comment: 10/15/04 RT WRIST
Past Surgical History
EXPLORE/TREAT ANKLE JOINT.
Comment ruptured tendon (RIGHT)
EXTENSIVE HAND SURGERY- 026250
Comment: RIGHT hand fusion ORIF
VAGINAL DELIVERY 59612
Comment: x3
3/18Y2005
3/18/2006
1998
1112006
SUBJECTIVE:
Patients Goals: "To get some motion to my tendons and use my arm
better."
Pain scale: 01 10 if not using right arm, 5 / 10 in right fingertips and wrist and is
described as sore and hot.
To manage symptoms, patient instructed to utilize heat and ice at home
OBJECTIVE:
Employment:Employed at Cambridge Home Health Care as a Nurses
Aide. Off work due to injury
Appearance:
Healed longitudinal incision over dorsal right wrist. Mild edema rioted. Atrophy right UE.
UPPER EXTREMITY STATUS ( Range of motion and strength):
If not noted, joint range of motion and strength within functional limits.
Right Forearm:
supination: AROM 80 degrees. PROM 85 degrecs, strength 4/ 5
pronation: AROM 90 degrees, strength 4 / 5
Right Wrist: fused
Right hand
AROM abte to rnake about 112 composite finger flexion
PROM able to make full fist. Full aetive finger extension. Smail finger flexion contracture
from previous injury. Have tried splint small finger without success. Small finger at
plateau.
Patient opposes Right thumb to t ips of index and middle fingers.
STRENGTH
Grip Strength: Greenleaf Electrodynamometer:
Position 2: Right 16 lbs., Left 51 lbs.
EXHIBIT G
... . . ,.:w „,,.....,^ .... . . . ..........__ _. ^_ .. _ .........-^-en•,^ iTf.t 099 OEE H 9WOH 39QIy9WV0 E1_Ol LOoZ-904LL 31
"1'he iv2ctrofleatth System I 25C ietroHcaltl: Drive I Clevetand OH 447 1 i16778 ?800 15100003
Position 3: Right 19 lbs., Left 51 lbs.
Norm for position 2: female age 50-54: Right 53 lbs., Left 48 Ibs.
Pinch Strength: Greenleaf Electrodynamorneter
Key... Right 7 lbs., Left 15 lbs.
3 Point... Right 6 lbs., Left 17 lbs.
Norms for lateral pinch: female age 50-54: right 12.0 lbs. left 11.5 lbs.
Norms for three-point pinch: female age 50-54: right 11.51bs. left'f0.5lbs.
Sensation: Llght Touch: reports numbness in index and middte
fingers
Dexterity: Able to use right UE for brushing teeth, unable to use right for fine motor, i. e,
putting on earrings, necklace.
FUNCTION / ADL:
Lives with boyfriend. Now able to use both hands for shampooing, can't write with right
hand. Holds hair dryer with left. Unable to tum car key with right.
ASSESSMENT:
Laura L Horvat is a 50 year old female 11 weeks and 3 days s/p right wrist fusion
surgery.
Problems include: Decreased Range of Motion, Decreased Strength, Decreased
Coordination I Dexterity, Hypersensitivity, Pain, Impaired Self Care Skills, Impaired
Home Management Skills, Unable to perform Full Work Tasks, Scarring and Lack of
Home Program
Patient could benefit from occupationaf therapy for the following goals:
GOALS
Short Term Goals: achieve in 2 weeks:
Demo home exercises of ROM
Demo home exercises of strengthening
Demo home exercises of scar management
Demo home exercises of desensitization
fdent'rfy precautions
Identify pain management techniques
Will achieve an increase of AROM
Long Term Goals: achieve in 8 weeks
Achieve functional AROM to perform self care, home management and leisure
Achieve functional strength to perform self care, home management and leisure
Hypersensitivity will not limit patient's performance in self care, home management and
leisure
Scarring will not limit joint motion in performance of self care, home management and
EXHIBIT G
.. /^.(ll L C/1<CR'19,
_^
.,
.
^^
i,n,, I [rt raaq nf,C ^H 3WOH 30QI83Wtl0
w
- rc^
ET:OT LOOZ-era 32
The Mctrolicalfl System 12.5 rfetroHealth Drive I Cleveland DH 44 216-773-7300 J 5100003
leisure
Incorporate pain management techniques in performance of self care, home
rnanagement and leisure
Return to work witn restrictions
PLAN:
Patient to foliow up with physician 12/1412007 Patient to be seen 2 times per week, for 8
weeks.
Treatment / Home Program to include:
AROM / Place and Holds right fingers
Tendon Gliding Exercises
Strengthening ( foam block, theraputty and PRE's as toleraled )
Desensitization ( massage, tapping and fabdcs )
Scar Management ( scar massage )
Pain management ( use of heat and cold )
Precautions
Plan of care discussed with patient and agreed upon. Risks and benefits of
Occupational Therapy discussed with patient
Garol Presutto, OTRIL
Previous Version
SmartForms
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INIERIJISCIPUNARV PATiELtT1FAMILY EDUCATION
FII d For the "10115f04 RT WRIS7" E' de
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SmartForm Tex( re ort f smadForrns Tded durino vM
Reports
CurrentMedication
s9L14LQ9L2Qp.7
Instmctions Dis Refillsj
MedtcaEon Start Sto
PERCOCET 5•325 M(5 OR TABS fOral) 07/18/2007 10/17f2007 1-2 tab q4h prn for oain 60 0 I
Medication Comments flled 90/Z7l2006
Pt. Reports she does not currently take medications.
Medication Recon -^II{at1p1C1.J^Lf^Encounfer tn40ej
A[lefpies as of 7 010 812 0 0 7: Nn Krtown AJ.tetgt_es
Date Reviewed
!10ros/2o07
Levol Of Level ot Se ice
Service
CONSULTATION FEE t977991
EXHIBIT G
cna ttri H99 nF;c'^'•.~^• ^ .,..^^•.^^ ^ H WWOR 3JQ1218Wtl7 6i=01 LOnZ- 00^^ 33
Tl eMetto"flealth Systetn' 25( 4etroHeatth llrive I Cleveland OH 44' 1216-778-7800 1 S100003
^n59S1ntBr. Dfagnoces
^
_-_- "- ^- _ --- - Comment
Diaqnosls
I (BWC) RT-WRJST SPRAIN NOS [842.00) 10115/04 RT WRIST
!Pn) -"___
Problem Li^ JQ(0.6/2007
Prohlem
•(BWC) RT-WRIST SPRAIN NOS 1842.01
1005104RTWRISi
: (6WC) RT-HAND SPRAlN NOS ( 842.10]
10/15/04 RT 1p1RlST
(BWC) RT ARTHROPATHY NOS, FOREARM [716.93]
10I15104 RT WRIST. Cl.k 04-888455SI/KHANH
Priorl -
Cless
BWC
Not®d
Resotved Deleted,
03118/2005
BWC
03/18/ZDD5
BWC
10l15l2004
..
^
. ., . ..- ._. . . . .
Rati^nt, lns#^-uati^.n.s
Admin istrative! nfotmation
AdministraCtva
Information
Encounter Clas5flcali4n[5]
Rofardn ProvIder
Visit Indlcator
None
KEITH, MICHAEL W.[2006]
None
Advance Advanne pireetives
DlrectlVes an File? Yes
Data Askea: 514/07
Power of AKotney
On File? Yes
Date Asked: 5/4/07
QrS1flr 3
Date
10l08/2007
10/08/2007
r[ ^
^.ther Orders
^OT INITIAL EVALUATION19"10031
THERAPEUTIC EXERClSES [9711003"591
Encounter
Status
Order Report
Order#35197916
Order #35197917
Eleceunicaliy signed by PRESUTTO. CAROL on 10/8107 at 4:38 PM
RyRerltnfcs
Re rt: UserAcces R_e ort
Re ort: Bar Codes
Re ott: Plain te enoounter-summa
Re on: After yisit sum_m^ revlew
ReooA^Encounler9owsbeetdata
^
EXHIBIT G
1---. .
90'^i
liE1 8°9 OEE H 3NOH aUQI`18WV7 fiT:OT L00Z-Pa)91^ 34
T[te Nlctrol3eald i Systern j 250 r.etroHcalUt Dtive I Cleve]and OH 441
Procedure Visit
216-778-78oo 15100003
Laura L Hoivar (MR# 5266472; DOB: 1213011956) 1011512007 1:00 PM in ASC OCC
THERAPY with Carol Presutto, OTRIL [2521
Encogftter inform_ation
Encounter q
I074860610
Visit p ne artment
23860831 ASC OCC THERAPY
L.
ftavilo.SIB Klsit
9ate
'fime
1a/o8r2oo7
2:00 PM
Place of serviee
Referrin"rovider
MH OUTPATIENT SURGFRY KEITH, MICHAEL W. [2006)^
CEI
CENTER
Leparttnent.
Asc Occ TherapY
Provlder -1
Carol Presuflo, OTWL, OT
Vital Sians
i.MP
Postmeno aus al
Progress Not es Carol Presutto, OTR/L Mon Oct 22, 2007 1:40 PM Addended
VISIT NUMBER: 2 of 16
Diagnosis: Sprain right thumb and wdst with ligament injury during a lift of a patient at
work 10115/2004.
Surgery: 7/19/07 Right wrist arthrodesis
10/26/2006 Arthrodesis (four corner intercarpal fusion with scaphoid
autograft) right wrist, carpectomy scaphoid (lunate fossa and lunate cartilage intact),
EPL released, PIN resected for pain control, repair dorsal ligaments from scaphoid to
lunate to capitate
Referring Provider. Michael W. Keith, MD
Payor: WORKER'S COMP - SELF INSURED Plan: SELF INSURED EMPLOYERS
Product Type: Worker"s Comp
SUBJECTIVE: "My hand is feeling sore from using it more."
Pain scale: 4 or 5/ 10 in dorsal palm and is described as aching.
Pain addressed with therapeutic exercise
OBJECTIVE,
Patient participated in 30 minutes of therapeutic exercises consisting of:
- Desen.sitizatiori=.partictes (unco.oked rice)
- Stretching/mobilization - right digits and forearm
- Strengthening - active use of vadous sized nuts and bolts removal and placement,
simulating key turning with yellow (light) Rosedale web. Elbow curls and shoulder
flexion to 90 with 1 lb. weight, 10 reps.
- Tendon glides
- Patient education - precautions, emphasis on not overdoing, pain management with
i ieat and cold
- Scar management
ASSESSMENT: Patient progressing well. Needs to continue to increase strength of
right hand and wrist. Home program upgraded.
PLAN: Continue plan of care. Emphasis to be placed on ROM, strengthening,
desensitization.
Carol Presutto, OTRJL
EXHIBIT G
i aaa nrr H 3WOH 300I88Wtlo
vt:ot iooz-Rage 35
"1'hc MclroHealth System I 25C SctroHCal[h Drive I Clevclarld OH 44'
i 216-776-7800 15100003
Previous Version
SmartForms
S!narLFqII115_E11Cd For tha 'Vl15/D4 RT W RIST_Episede
OD
C.9
--
Curre nt
Opf[,catko.ns ag of 101 j2Qt17
Medication
)Start IStop
Instructlons
PERCOCET 5-325 MG OR TABS Oral) 107/19/200711011712DO711-2 tab q4h prn for pain
IMedicatfon Comments filed 10l23/2006)
^Pt. Repons she does noi currently teke medications.
AIs ^ ReKlle'^^
60 l0
I
M®dtcasj20_$er.m>sIllatton This_E,ftunter fnoneJ
A11er°fegas of 10/1SI2007• No (( town Allerdies
E)ate Reviewed
10/05/2007
Level Of ev I f Cmice
Service CONSULTATION FEE 1977991
Encoun$g^plagnoses
Comment
10/15/04 RT WRIST
Dia nosls
(BWC RT-WRIST SPRAIN NOS [842.00]
Po)
Qr0]21em List as of 10115f^f g,7
Problem
Prio '
-(BWC) RT-WRIST SPRAIN N05 [842.00]
10/15104 RT WRIST
-(BWC) RT-HANA SPRAIN NOS [B42.10]
10118/04 RT WRIST
-(BWC) RT ARTHROPATHY NOS, FOREARM [716.93]
10I15104 RT WRIST. CIJi 048884555I/KHNJH
Class
Noted
BWC
0311812005
BWC
03/18/2005
BWC
10/15/2004
Resolved 0eieted
Pit,iaht^ I n 8tr0 Gt^o n s
Adiniqistr.atiue infoicination
Administrative
Information
Advance
plrcctivae
Encounte Clas
None
6on(s)
ReferrtnnPt4Kider
Yfs4tlp.Qical or
KEITH, MICHAEL W.R006J None
Advance Dlrective5
Powerof Anornev
On File? Yas
On Fite? Yes
Dale Asked: 5/4107
Date Asked: 514107
Q[Stq l^
Other Orders Date
^THERAPEUTC EXERGISES [97110D3] (qty=2) 10115/2007
Encounter
Status
Order Report
Order #35316359
Elecnonically signed by PRESUTTO. CAROL on 10/15/07 at 1:38 PM
Hyperlinks
EXHIBIT G
Rn + ttei a59 B aWOH 390laawvD st:ot I ODZ-Go age 36
The Metrollnilth System 1215( 4etrOliealth hrive j Clcveland OEI 44: 216-775-7500 15 100003
RepQrt: Usef, Acc,ess Report
Re ort: Bar Codes
Repod: Plaui text encountor sunmal'y
Reoort Ah_^r ^isit sum_mary re^iew
Re ort: Encountertlowshee^data
EXHIBIT G
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^^!^ H BWOH 3oOIN9WtlJ DloOl 1,00Z-P„@6 37
T(ie MctroI-IGalth System 1 25r 'fietraFlealin Drive j Cleveland OIt 44 23 G-773-7800 JS 7 00003
Procedure Visit
Laura L};orvat ( MR# 5266472; DO6: 1213611956) 1 0122J2007 1:00 PM in ASC OCC
THFRAPY with Carol Presutto, OTRIL [2521
E4counter. In9rm pn
Encounfer^ V^sit#
074860610 23860833
Do artrnent
_ place pf serv]cs
:
'Referring provider
ASC OCC THERAPY MH OUTPATIENT SURGERYJKETH, MICHAEL W. 120061
CENTER
Prg.yjp^^ Ylsit
Dafo
ionsr20o7
Tima
1:00 PM
Department TPrwider
-Asc Occ Therapy
iCarol Presutlo, OTWL, OT
Vitat_$Igns.
lMP
Poslmeno ausal
Progress Notes
Carol Presutto, OTR/L Mon Oct 22, 2007 1:38 PM Signed
VISIT NUMBER: 3 of 16
Diagnosis: Sprain right thumb and wrist with ligament injury during a lifl of a patient at
work 10/15/2004.
Surgery: 7/19107 Right wrist arthrodesis
10/2612006 Arthrodesis (four comer iniercarpal fusion with scaphoid
autograft) dght wrist, carpectomy scaphoid (lunate fossa and lunate cartilage intact),
EPL released, PIN resected for pain control, repair dorsal ligarnents from scaphoid to
lunate to capitate
Referring Provider: Micltael W. Keith,
MD
Payor: WORKER'S COMP- SELF INSURED Plan: SELF INSURED EMPLOYERS
Product Type: Worker's Comp
SUBJECTIVE: "My hand hurt after therapy (ast week."
Pain scale: 6 / 10 in dorsal palm and is described as aching.
Pain addressed with therapeutic exercise
OBJECTIVE:
Patient participated in 30 minutes of therapeutic exercises consisting of:
- Desensitization - particles ( uncooked rice)
- Stretching/mobilization - right digits and forearm
- Strengthening - Elbow curls and shoulder Flexion to 90 with 1 lb. weight, 10 reps.
with foreann in neutral. Rolling with light theraputty. Pinch into putty for small pegs
- Finger flexion and extension isometrics
- Patient education - precautions, emphasis on not overdoing, pain management
using cold
- Scar management
ASSESSMENT: Patient progressing well. Doesn't tolerated any resistance to wrist in
forearm supination or pronation. Has to be positioned in midposition. Possibly
simulating key turning causing increased symptoms last week.
PLAN: Continue pian of care. Emphasis to be placed on ROM, strengthening,
desensitization.
EXHIBIT G
01 -d liEt 899 DL'E^•••^_•1 . ._._-.__ __ H flWuH 3`1r1IHflW1+C
Vl=OT LDOZ-PaM1H 38
Tl;e ,1Retrollealth System 125C /eh o)Ieaiih Drive ! Cleveland OH 44 i 216-778-7800 j S 100003
Carol Presutto, OTR'L
SmartForms
SmB[7Form5Fle.d For thv."10715l04 RT I+yRrcT^ EpisoJn
C,8
C9
Current Me ic?itlQps_as., of10 22/20 j(NONE)
Medfca5on
Start lstop lnstrucfions
Medication Comments (Hled ]0I2372005) ___ _
Ft. Re orts she does not currenU
take medications.
^__-
Olsp [ReflIls
mQ9icat1vuJ3econsili^tfon.T>,i=. Fn^ot!rd^^,(nenel
MIergies as o00722I2067: No Known_Alferaies
Date Reviewed
10ros72007
Level Of 1..evet af Servicg
Service
CONSULTATION FEE [97799[
Enenunter Diagny§;g.g
^ Dla nosis -- 11 (BWC) RT-WRIST SPRAIN NOS [842.00)
qAn)
I
_
Comrrtent
10115704 RT WRIST
Pro4lem List as of 7Qf221Z007
Ptiorl
Pro6lem
•(BWC) RT-WRIST SPRAIN NOS [842.00]
Clase
BWC
Noted
Resolved Oaletsd
0311812005
BWC
0371B12005
BWC
10N 5/2004
10115704 RT WRIST
•(BWC) RT-HAND SPRAIN NOS [842,101
70115/04 RT WRIST
^16.93]
ROCL# 04-884551 KH/WH
1 0181 04 RT WR ST
P4ttient [ngtiuctiiins
Administxative Ittformation
Administrative F„p^o untar Classlf4aioMsl R gferdng Proyider Vlalt Indtcator
Information Nonr KEITH, MICHAEL w r2ppF) None
Pow r y
Advance Advanca Olrectivrs
Oirective5 On File7 Yes On Eile7 Yes
Date Asked: 5l4I07 Dats Asked: 514707
Orders
Other Orders
7HERAPEUTI C EXERCISES [971100J (qry=2)
Date
10/2212007
Order Report
Order#35442352
EXHIBIT G
[1 d r 11£i 899^OEE^('•^^`T , -^__^_- -H 3WOH 3rJQI89Wtl0 5t=0i LOOZ-Ptig-6 39
The P✓IetroHealth Systenl 1 250
tctroHe•aftlt brivc I Cleveland OH V T ^ 216 -773-7800 15100003
Encountor c-lectronically s qne•d by PRE SU 7C, .,n RD L on }0/2207 nl . ao E ^d
i
Hyperlinks
Report: User Access Re ort
Repod: 8ar Cqdes
-_-`
Re ort; Plain texi encounier suinmgv_
Re nrtt After visit summa review _`_ I
"-_J1
Re ort;Encounter tlowsheet data
EXHIBIT G
,.^„ .. ^,«....,...-----... .. .__.
zt ^ :ec © ee oec n swoh aoataawv:^ si:ot ouz-^a^^ 40
T be h4etroHealth System I ::5 Metroflealth Dtive I Clevcl.uid O3i 44 ) 1216-775-7800 15100003
Laura L Horvat (MR# 52664(2; DOB: 12/3011956) 10/0512007 10:15 AM {n ASC
PHYSICIAN OFFICES with Dr. Michaol W. Keith 1002006]
Office Visit
Fa<rounter_ Informatip 0
Encounter#
tsit # De rtment Place offservice
074801150
23466749
i
Refortinq provSder
ASC PHYSICIAN OFFICES MH OUTPATIENT SURGERY
CENTER
Previous V1^JY
Trme
Date
D8124l2007
atfinent
10:OD AM
.Asc Physmian Offices
Proyider '
I
Dr. Michael W Keith, MD
R€o.OttFoC-ktstt
Comment
Reason
Lirnlted or partial axam (323)
Vital ' s
ern
LMP
98.1 Postmenopausal
,(Tympanic
axtetfded Vitals
Pain Date Tlme
0110 10/05l2007 0912
AM
ProBrass Notes Dr. Michaol W. Keith Fri Oct 5, 2007 4:58 PM Signed
CHRISTINE M ANIELSKI Wed Oct 17,2007 4:11 PM Addended
See letter to Linda Hunt vocational case manager
Lettevs
KEITH MIGHBEL W,,(M0) on t01i7l2097 Sent
SmartForms SmaISE4Sm.s_File4Durtn thisV"s"t
VITAL.SIGNS
INTERDISCIPLINARY PATIENTIFAMJ.LY EDUCATION
SmartForms Filed Fq( the " t0/15lOa RT WRISILF gnde
C9
C9
SmartForm T xt r rmrt of SmartForms filed durina vsil
Reports
Curr @dicoitions as of 1010512p07
Inatruc
Medioation St9rt
6tn
tions
Dis
PERCOCET 5325 MG OR TABS (Orap on1912007 10l17l20071-2 tab q4h pm for pain
Medlcation Comments (Fled 10I23/2006)
Pt. Reports she does not cunently take medications.
Refills
60
0
Mgs1rc 1pn RecopFlttatiqn Thig Encounte^(non
A]1@[gt.frs as of 1014$LZQQZ: No. Knywn Allerales
Date Reviewed
EXHIBIT G
f,f'i 11EI 89° DEC^!!^-` N BWOH 39n1H8WV0 51:0i LOOZ-ppaG!)kI 41
^Ilte MetroIleaIt11 Systeni f^.5( netro)-?ealth Drive I C[eveiand OH 14' i 2) 6-77S-7S00 1 S) 00003
(10/0512007
Levet Of LCyef pl Servicg
Servtce
LEVEL 3 EXPANDED, ESTABL!SHED 199213)
Encognte_r Dia°npsss
comment _
70115/04 RT WRIST
Dia nosts _
1 (BWC) R7-WRIST SPRAIN NOS t842.001
(PO)
Problem L't5t as of 10/OS/2QQZ
Prlorl
Probtem
•(BWC) RT-WRIST SPRAIN NOS (842.00)
10115/04 RT WRIST
Class
BW
Noted
•(BWCj RT-HANO SPRAIN NOS [842.10)
BW#U31 '1
10155/D4 RT WRIST
•(BWC) RT ARTHROPATHY NOS, FOREARM (716.93)
10/15/04 RT WRIST. CL# 04-888455SI/KH/WH
BW
ResoWed De)ated
Patle{Yt InSt1•uGt19f1S
Administrative, information
AcfvanCe Advance Dlrecty^s
Dinactives On File? Yes
Date Asked: 514/07
pSDNer of-AttorneV
On Fi7e? Ye6
Date Asked: 514107
Orders (NON<EOUNDf
Enc o untar Electronically signed by KEITH, MICHPEL W. (MD) on 10l5107 at 4:58 PM
Staf
'Re ortUserAccess_Re ort_
RetH1tt Bar Cop^es
Re rt Plain texl encoun^t summnn>n
t3g ort: ASer vlstt summa. preview
Report Encourt[erflowshet deta
EXHIBIT G
vi a'- iiel e^3 oee' H 3WDH aeulaewvD at:ot t0ozFikfix 42
330 SE0 1311 P.03
P1A'f--22-2008 12:1'7 CAMBRIDGE HOME H
Jawarski P&ysical Therapy, Inc
® 137 Winckles SGeet
Elyria, Ohio 44035
Ph: 440-366-5993
Fax: 440-366-5313
Excellence in Outpatient
Rehabilitatioti
JPTREHAB. COM
❑ 6150 Enerald Street
North Ridgeville, Ohio 44039
Ph: 440-327-1602
Fax: 440-327-1656
Patient: LauraFtorvat Medical Record Number 201731 Date: 05/07/08
Physician: pr. Ivfichael Kei.th Diagnosis: Right wtist sprainlstrain
Surgery. Right wrist arthrodesis Date of Sunaery: 10J26106, 07119/07
Purpose of Assessment: To detennine subject's cUment physical capabilities
------Surnmary-oFResntfsThiSS'tyaartiid-riglri tl8tfd2Si an em e presen e o e dimc on time, was appropnately
dressed and was cooperative.
Range of Motion & Strength: Subject presents with no focal ROM of the lower extremfies. She is moderately limited in
bilateral corvical and trunk lateral tlexion. She has moderate limitation in left shoulder movements. She has signif-icant
limitations in right shoulder, wrist and hand movements. Right shoulder Flwdon is 95 dgs., ER 50 dgs., and IR 30 dgs.
Due to the arthrodesis, there is no movement for wrist f3ebon/extension, lateral and ulnar devialion. She is able to oppose
her right thumb and index finger and unable to oppose any other finger. The right fifth finger PIP remains in 90 dgs. of
flexion at all times and cannot passively be straightened. She has enough finger movement to grasp a wide pen.
There are no foral strength deficits of the lower extremitiPs. The right shoulder movements could not be tested with the
Micmfet dynamometer due to placement of the device on the foreann. Her left shoulder strength showed no focal deficits.
She was unable to record a n:suft with the right hand on the grip dynamometer as she was unable to grip. Her left hand
strength is 39-49% of nonnative data.
Fine Motor Skills: Subject was unable to grasp 2 different types of pegs with her right hand, therefore testing was not
done on the tighL She completed the tests with the left hand and was signiftcunUy below normative standards.
Cardi❑vascuiar Status: Subjeci completed I mile on the stationary bike for8 minutes, requested to slop due to general
fatlgue. She exhibited no shortness of breath. Her head rate recovered to pretest level wlthin S minutes.
Consistency of Effort Eight tests for her left hand were administered to determine her consistency of effort. She was
observed trying to grip the hand held dynamometer. She needed her left hand to assist and she did not register a reading
with the rigM hand. Testing on the right hand was not done. If the co-etflclent of variance is 15% or less, elfort is
considered to be consistent and valid. Of the eight tests, 2 had a co-efficient of vadance over 15% (range: 28.93'/=30.48%). Six had a co-ef8cient of vadance below 15% (range 2 84°.6-13.47%). Twenty five peivent of the left handed grip
testing was inconsistent.
Litt/Carry Abilities
worklhomelleBgubF
Floor Lift Strength (0-15")
Knee Lift Strength (16-291
Worker
Sa4e Load
0 lbs.
0 lbs-
Job Match
Demand
25 lbs.
25 lbs.
Waist tJft Strenglh (30-36°)
Physical Aptitudes
woridttomelfeisure
Agdityldynamic balance
Finger Dexteri[y
Worker
Aptitude
Low
Never
Job Match
Demand
Low
Low
Never
Low
Worker
Tolerance
Frequent
Job Match
Demand
Frequent
Sit
Constant
Frequent
Altemate Sit or stand
Frequent
Frequent
Reach above shoulder leval
Never
Occasional
TwistAurn head
Bend over/ stoop
Climb- legs only (steps)
Climb arrnsAegs Qadders)
Kneel/squat down
Frequent
Occasional
Occasional
Never
Occasional
Frequent
Frequent
Occasional
Never
Occasional
0 Ibs.
100 lbs.
Manual Dexterity
Chest Lift Strength (37-48')
Shnulder Lift Strength (49-60')
Overhead Lift Strengih
Carry Strength 50' or less
Horizontal Push/Pull Strength
0 lbs.
0 lbs.
0 Ibs.
0 lbs.
35 lbs.
251bs.
25 Ibs.
15 Ibs.
25 Ibs.
175 lbs-
Kay; Never-o%'va.y Low= 1-39% • Low= 40-79%
Mecgum=80 rfg%"Hien=120%olindustnarstanda.d
Frequent Lift(>12 reps/hour)
0 lbs.
15 lbs.
constant Lift (>30 reps/hour)
0 lbs.
5 lbs.
Posture Tolerances
work/horne/teisure
Stand/Walk
Key.'Newr- 0% -OCCSSfonaf= 1-33%' PRoquenr=34=86%'
C.onstarA= 87•100%'Exha hme=>8 hours perday
Job Match: Subject met the job requirements in standfwalk, sit, aRemate sit or stand, twist/tum head, climbing steps,
climbing ladders and kneeUsquat down. She is unable to perform two handed lifts. She cannot perfomi any finger or
manual dexterify activities with the right hand and is well below normative standards on her left hartd. She is unable to
perform repebtive activity with the right hand and has diffiailty with the left.
YTorvat, Lam FCE 5-7-08-2 Page 1 of 7
EXHIBIT G
ExhibirFPage 43
33U 6bH 1;t11 t'.U4
MAY-22-200n t2:17 CAMBRIDGE HOME !i
Recommendations: The subject will not be able to return to her job as a home health aide mainly due to lier inability to
tiit/perform transfers, difficulty io reaching, i_e. bathing and dressing the patient and very poor manual dexferity. Any
employment opportunity would require edensive use of her left hand/upper extremity with minlmal assistance of her right.
She does not have the finger dexterity to type orwritewith the right hand. She has a moderately positive unpingement
sign of the lett shoulderwhich could also limitthe use of her left UE. As she has had extensiva rehabilitation, it is
questionable if she would benefit from further rehab. These limitaGons would be permanent.
0
Barbara Hombeek, PT #2404 05107108
wEstu^,.This^1
` _aexCAd-.d9hf«andsio«ina',-:2 aleTc shaaln^aide•farGamGidgaH ,,, , eatfh aerr^ywas _._...._
assisting a multiple sclerosis patient by lifting and transferting him to a commode on 10f15104 when she feft pain in the
right thumb/wrisi area. She called her office and related the inddent to them. She continued to work and went to her next
client. As symptoms wonsened, sha called the otTice and stopped for the day. She was referred to an Occupational
Medicine Specialist, diagnosed as a sprain right thumbfvmst and was refened to Occupaiional Therapy. Subject stated
she received no X-rays. She received 32 sessions of O.T. She was then referred to "a specialist at Crystal Clinic" and
O.T. was stopped. She received further evaluations from differsnt physicians, She was casted on and off for several
monttts. She conGnued to work for 6 months in the office with no patient care. She sought a medical opinion from Dr.
Michael Keith. She received X-rays and a bone scan which, according to the subject, showed a"chipped bone
compressing a netve and artery." On October 26, 2006, she had an arthrodesis of the right wrist, carpectomy of the
scaphoid, EPL release, PIN resection for pain co0trot, and repair dorsal ligements. As the pain conttnued, she had a
secontl wrist arthrodesis on 07119/07. She has not had any further treatment. She currently uses ice and X-tra strength
Tylenol for pain conboL Her current pain lavei is 5-8/10 of the right wrist/hand. Other pertinent medical history inGudes
arthritis and occasional hypertension.
Job Descriptinn: The subtect is a home heaHh aide for Cambridge Home Health Agency. She is required to drive to her
Gients' homes, assist in bathing, dressing. ADLs, transferring clieMs, toileting, making beds and assisting with household
activities.
LiftlCarry ABili6es
work/homelieisure
Floor Lift Shength (0-1 5')
Knee Lift Strength (16-29")
Waist Lift Strength (30-36^
Chest Lift Strength (37-48")
Shoulder I..i¢ Strength (4&-60")
Overhead Lift Strength
Carry Strength 50' or less
Horizontal Push/Pull Strength
Frequent Lift(^12 reps/hour)
Constant Lift (>30 reps/hour)
Job Match
Demand
25 lbs.
25 lbs.
100 Ibs.
25 lbs.
25 !bs.
15 lbs.
25 lbs.
175 lbs.
15 Ibs_
5 Ibs_
Job Matsh: El Sedentary ❑ Ught ® Medium
❑ Heavy [] Very Heavy
Physical Aptitudes
work/homelleisure
Agility/dynamic balance
Finger Dederity
Manual Dextertty
Job Match
Demand
Low
Low
Low
Key: Never-0%'Very Lon^1-39%' Lar 40-79%
MednNm= 84179%•High=720% oflndusbial standard
Posture Tolerances
Job Match
work/home/leisure
Stand(Walk
Sit
ARemate sit or stand
Demand
Frequent
Frequent
Frequent
Reach above shoulder level
Occasional
Twist/tum head
Bend over/ stoop
Climb- legs only (steps)
Climb annsAegs (ladders)
KneeVsquat down
Frequent
Frequent
Occasional
Never
Occasional
Key: Never= 0%'OCtasronal= 1-33%'Tiequent-34=68%'
Constanh 87-700%' 6rLa 6me=>8 hours pef day
Horvat, faura FCJ= 5-7-08-2 Page 2 of 7
EXHIBIT G
Page 44
330 668 1311 P.05
PSAY-213-200n i2:18 CAM[,'RI ➢GE I1OML' H
Range ot Motion Limitations:
WNL min Mod
Cervical Flexion
❑ ❑ U
Cervical Extension
❑ ❑
M
Cervicat Left Sidebending
❑ ❑ N
Cervical R(ght Sidebending
Cervical Left Rotatian
Cervical Right Rotation
❑ ❑
®
Lurnbar Flexion
❑
❑
0
Lumbar Extension
❑
® [.7
o ^ n
Severe
Lumbar Left Sidebending
❑
Lumbar f2ight Sidebenriing
❑
Lumbar Left Rotatfon
❑
Lumbar Rlght Rotation
❑
Upper Ectremily (left)
❑
[,J Upper Extremity (right)
Lower Extremity ( right)
❑
❑
Lower F^dremity (left)
WNL Min Mod Severe
n
❑
m
❑
rA
❑
❑ ❑ ❑
®
❑ ❑
m ❑ ❑ ❑
^ ^ 0
❑
a ® o a
Comments: Subject has 80-85 dgs. of MP flexion, 95-10D dgs. PIP flexion right hand. Right fifth finger PIP does not
extend past 90 dgs_
., RighL _^
Left
( Active Range of Motion
-o ouroerTlexron
125'
95*
Shoulder ER
ShoWqerIR
Wrist tfexion
Wrist extensine
9090°
25'
50'
50"
30°
0° _
D"
Deficits'
Strenntil:
WNL
Upperextremit
e
X
ft
Uppor extrem'_ ri hq
Lower extrem' left)
X
Lower extremi (righ
X
WFL
Defidts
Knee Extension
Knee Flexton
Hip Ftexion
Shoulder Intemal Rotation
Shoulder Fxtemal Rotation
Shoulder Flexion
Cardiovascular Assessment:
Resting Hean Rate
^
Resting Blood Pressure
Hean rate immediately after completion of staiionary bike test
Heart Rate after 3 minute rest
88 Gpm _^
1571111 mm/Hq
12tt bpm ^
90 b m
Heart Rate after 5 minute r e s t
84 b
Left
37 Ibs.
37 Ibs.
23 lbs.
15 Ibs.
15 1bs,
11 Ilxs.
Right
41 Ibs.
35 Ibs.
26 lbs.
unable
unable
unable
Comments_ Completed one mile, 8 minutes requesting to stoRdue to fatigue.
Neurological Findings: Subject exhibits hypersensitivity to touch along the dorsal and ventral aspect otthe right lower
foreamt and wrist, unable to tolerate light touch or pressure given by the therapist.
Soft Tissue Assessment: Subject's right lower foreamVwrist is redder, slightly more swollen in the fingers and has a
shiny glean when compared to the left She is able to tolerate palpation of ibe right shoulder
and upper arm, but pulls away with palpation of the wrist extensor and flexor groups. Stie has
a surgical scar, approximately 6 inches long along the ventral surface of the foreann that is
healed_
Musculoskeletal Screen: Subject stantls wlth the right shoulder and scapufa elevated. The humeral heads are elevated
and anterior. She exhibits a moderately posifive impingement sign on the left and rigttt
shoulders. She has a forward head and shoulder poslure with an increased thoracic kyphosis
noted. She exhibits a decreased lumbar loniosis. Her pelvis is tevet.
Gait Pattern: Subjeot ambukates without focal deficits. She uses no devlr,es.
Other. Subject was able to sit for 45 minutes during the interview and initial testing without distress.
She was able to standlambulate 25 minutes durtng non-material handling before requesting to
sit due to faUgue. She was observed writing her name and the date with a wKte width pen
using her right hand. Her signature had very poor legibility.
Hornt, Laure FCE 5-7-08-2 Page 3 of 7
EXHIBIT G
Page 45
3t 1 P. 06
330 660 1
C?.i'IBRf DGE i{ONE It
19AY-22-2000 12.16
Test
5.5
Unable
6
Unable
5,
Left Pinch Lateral
Riglit Pjnch Laterul
Left 3 Jaw Pinch
Right 3 Jaw Pinch
I_ett lip Pinch
Right Tip Pinch
Grip Strength Left Hand 43
Grip Sttength Right Hand #3
Grip Strength Left Hand tf4
Grip Strength Right Hand #4
Grip Strength Left Hand #2
^7 ,^I1hl^nzf ^ Grip Strength Left I{and #5
Grip Strength Right Hand #5
Grip Strength Left Hand #1
Grip Strength Riqht Hand #1
Unable
21
Unable
20
Unable
17
7
Unable
6
Unable
5.5
Unable
22
Unable
21
Unable
20
6.5
Unable
7
Unable
05
Unable
20
Unable
20
Unable
30
na te Un^ t^ ble
18
Unable
1B
Unable
18
Unahle
11
(J nable
14
Unable
20
Unable
Co-efficient
of Vatiance
12.1%
8.33
^;tandarrl
Deviation
76
6.33
.58
9.12%
5.67
76
13.47%
Average
l :(pounds offorce)
1
-= ^
4.76%
21
20 33
.58
2.84%
22.33 asked to
stand due to pa i n _
^ 15.33
6.S
30.48%
1.15
7.53%
16.33
4.72
28.93%
---^---------
--%
Co-el&leni ofVenance bntwexn 0-15% /s consfdared ConSistenr in edorr.
1. Grip shength was tested in the following position order 3-4-2-5-1
2. Six tests were completed with a co-etficient of varianea of 15% or less. Therefore siK tests are assumed to demonstrate
consistent effon by the olient
3 The pain level of the right foreamnMnist and hand at the initia8on of the FOE was reported at 5-6I10 and upon the completion
ot pinch and grip tesGng this was reported as 9/10,
Five position testing for grip strength showed a normal bell-shaped curve on the left.
1 2 3 4 5
Right Gdp Strength Unable Unable Unable Unable Unable
LeftGripStrength . 16.33 lbs 22.331bs 21 lbs 20.33lbs 15.33 lbs
Grip strength compared to nonnative data for 51 year old, right dominant, female-
Grip strength position!#2
Lateral Pinch
3 Jaw dluck
Tip Pinch
Right
Unable lbs
Unable Ibs
Unable lbs
Unable lbs
Normal (tight)
65.7lbs
16.5lbs
17.1 lbs
12.5 lbs
Left
22.33 lbs
6,33 lbs
6.33lbs
5.67 lbs
Normal (left)
57.2 lbs
16 lbs
16.21bs
11.4 lbs
Horvat, ianra FCE 5-7-08-2 Page 4 of 7
EXHIBIT G
Page 46
330 668 1311 ?.07
11AY-22-2000 12: L3 CAI;63IJGE HOME H
Material Handling- Lifting
Chest Lift Strength- Both Arms: ® Standard (48') [] other
Safe Limit: Ibs Time: sec HR min
End point: ❑ Subjed Umited ^ Coordinatfon
❑ Job Limit [] More Symptoms
❑ Other Reason
❑ Target HR
Comments: Unable to grip the box with the dght hand.
Could not complete the test.
Chest lift Frequent- Both AmiS: 0 Standard (as-) El Other
Safe LImR: lbs Time: sec HR rnin
End point: ❑ Subject Limfled N Coontination
❑ Job Limit __ _ I^More
--- ^ Target HR
❑ Other Reason
Coniments: Could not complete single lift
Carrying Strength- Both Arms: n Standard (50") (] Other
Safe Limit: Ebs Time: sec HR min
❑ Coordina5on
End point: ❑ Subject Limited
❑ Job Limit
❑ More Symptoms
[] Target HR [] Other Reasori
Comments: Unable to gripthe box with the right hand.
Could not complete the test.
Overhead Lift Strength- Both Arms ® Standard [] Other
Safe Limit: ibs Time: sec HR rnin
End point: 0 Subject Limited N Coordination
❑ Job Limit
❑ More Symptoms
❑ Target HR Q Other Reason
Comments: Subject attempted, txrt had 95 dgs. of ftexion
without lifiing box. Unable to pertorm test,
Pallet Litt Strength- Both Arrns: 9 Standard (o )[] o8,er
Safe Limft: It.s Time: sec HR niin
End point: L1 Subject Limited ® CoordinaGon
F] Job Limit
❑ More Symptoms
❑ Other Reason
0 Target HR
Comments: Unable to grip the box with the tight hand.
Could not complete test.
Pallet Lift Frequent- Both Arms: 0 Standard (6') ❑ Other
Safe Limit: lbs T9me: sec HR min
End point: ❑ Subject Limited ® Coordination
_.^-Joti-Limit-----8•'+6er^^mptems--❑ Other Reason
0 Target HR
Comments, Could not complete single litt
Unilateral Carry Strength: ® Standard (50'") i_j Other
Right Arm Carry Left Arm Carry
Safe Limit: 7 ib.
Safe Limit: lb.
Carry Time: sec. Carry Time: sec.
bpm Heart Rate: bprn
Heart Rate:
Endpoint: Endpoint:
❑ Subject Limded
❑ Subject Limited
❑ More Synrptoms ® Mon: Symptoms
❑ Coordination
Coordination
❑ Job Limit
❑ Job Limit
❑ Target Heart Rate
❑ Target Heart Rate
❑ Other Reason
❑ Other fteason
Comments: Subject did not pertorm right arm cany per
iherapist due to high pain level. Able to carry 7 lb, empty
boxwith left hand but noted moderately increased left
shoulder pain.
Non Material Handiing:
Activdy
Trial 1 (reps/sessions)
Climbing
Trunk t3ending (1 miriute
episode)
Overhead Reach (1 minute
episode)
Crawling 10 feet
squatting Repetrtive (Five ttmes)
Kneeling (1 minute)
Stooping repetitive (five times)
Crouching (sustained squat for I
minute)
Ladder Climb (3- rungs, 3 times)
Trunk Twisting (5 times)
Fonvard Reaching (1 minute)
Push/Pull (repetftive, weight 35
Ibs)
RadiaUUlnar Deviation (repetitive
I minute)
Supinate/Pronate (repetitive 1
min.)
Wrist flexiordextension (repetitive
I rnin)
Able to ascendldescend steps reciprocally
16x
Trial 2
(reps/sess:oas
Unable righf, left 5x/20 secs. stnpped left shoulder pain
Unable due to right wdst fusion
5x
X - needed to hold onto chair to get in and out of position
2x with ann, 3x using legs only
14 sees. holding on, stopped at 20 secs. due to UE fahgue
(answer subject gave when asked)
Not tested duc to safety reasons pertherapist
x
5x/21.62 secs. stopped right UE. left shoulder pain
X-pushed with body/left hand (no right hand), pulls with left hand
anly
19 secs./12x IeR only, stopped left shoulder pain
20 secsJ4x left than right, stopped due to dght and left shoulder
pain
16.41 secs./5 reps. left only, stopped due to left shoulder pain
Horvat, t.awa FCE 5-7-08-2 page 5 of 7
EXHIBIT G
Page 47
M.4Y-Za-2008
330 6Ge 1311 P.08
12:15 CAMSRIDGE HC)ME It
Comments: Last 3 acGvities of tl1 nz-material handfing sections were instruc . tu be done standing. Subject
requested that she be seated forthat part due to generalized faGgue and increasing pain of the right UE.
Subject 5tarted non matenal handling ;edion at 8/10 pain of the left shoutder, iight wrist; 511 D right stioutder.
Upon completion of this section, She noted rigtd hand/wrist pain 10110 with throbbing/aching and swelling; rigttt shoulder
9110 with right UE fatigued and "heavy", left shoulder a-g/io with left UE'Yimd".
Coordinationldexterity testinq
Nine tiole pegboard test: The score for each hand is the 6rne nequired to place and remove 9 pegs in a 5 inch square
board.
Right Unable to pick up pegs sec
Left 35 sec
Norm for age/sex
Norrn for agc/sex
13-23 sec
14-26 sec
Grooved Pegboard Tests __
Ptac^ng e 6T.3' - Right Retum Test f19 4)- Rioht
Drop errots ( 1.4 s): -# Drop errors (- 1.4 s): -#
Retum errors (-1.2s): -# Miss errors (-0.&s): -7k
Placing Time ;- s Placing Time :- s
Comments Subject observed attempting to pick up pegs.
Could not grasp with fingers,
Plaang Test (61.31-Leff Retum Test (19.4)- Left
Drop errors (-1.4 s): 1# Drop errors (-1.4 s): 1#
Return errors t-1.2s): 0 # Miss errors (-0.6s): 1#
Placing Time : 153.5 s Placing Time : 29.39 s
Comments: Subject noted increased left shoulder pain.
Pertormance Validity Rating;
0 Very High- Subject was fully cooperative and pmvides a good, consistent effort. No signtficant probiems or physical
limitations were identified before, during or in response to the exam.
❑ Htgtr The subject was fully cooperative and provided a good, consistent effort. Probiems and physical limitations
identified during the exam were MOSTLY SUBSTANTIATED by objective findings. Reported severity of symptoms did
not increasa significarrity in response to the exam.
® Mediam-The subjectwasfully ceoperative and provided a cansistentetforton mostactivi6es. Problems reporled and
demonstrated functional abilities were MOSTLY SUBSTANTIATED by objedive findings. Performanr^ on some activfties
was somewhat inconsistent, self-limifed or associated with inerease symptom reporting in response to the exam.
❑ Low^ The subject's performanoe was inconsistent or more limited than expected on activifies that stressed recent
problem areas_ Degree of reported ore demonstrated functional limitations was NOT SUBSTANTiATED by objective
frndings. Subject was cooperative and provided a good effort on requested activities that dtd not significanUy stress recent
problem areas.
L] i/ery Low- The subject's perforrnance was very self-limited and ineonsistent. The subject's demonsbsted
performance was NOT SU9STANTIATEO by objecOve findings_ The subject was NOT COOPERATIVE and appeared to
exaggerate the degree of reported problems and functionat limRaBons throughout the exam_
Validity Concems
1. UnusuaUexcessive symptoms raports
2. Unusuallexcessive pain behaviors
® Yes
❑ Yes
3. Inconsistent movement pattems
❑ Yes
No
4. Inconsistent strength tests results
5. Abnormal function uninjured region
6. Poorsafetyjudgmenl exhibited
7. Refusal to attempt speciryc test(s)
Yes
Yes
❑ Yes
® Yes
❑ No
❑ No
0 No
❑ No
8. Increase symptoms following exam
Comments: Reasons for "yes" answers:
0 Yes
❑ No
❑ No
® No
1. Subject reported levels of 8-9110 pain of the left shoulder which had no history of injury or previous condition.
4. Subjed completed 8 grip strerigth tests with the unaffected hand. Two out of 8(25q,) were inconsistent.
5. Suqect reported high pain levels and frequently stopped tasks due to left sThoulder pain and decreased movement
Left shoulder/upper extremity was not injured. Subject reports left shoulder pain is from increased use of the left UE,
7. Subject appmpriately refused ladder and crawling tasks due to safety,
8. Subject started evaluation at level 5-6/10 forthe rigM hand and left shoulder. She ended the evaluation al level 10110
ng t wnstlhand t nd 9/10 right and left shoulder.
! ,^^,LuL fitm+lt-r^.(z^t3^fa/
'S Barbam Hombeek, PT #2404 05/07108
t-Ioryat, Lauia FCE 5-7-08-2 Page 6 of 7
EXHIBIT G
TOTAL P.DO
Page 48
-t^ _I.^.^i^^ +^ ^
Uccupatia^slMedicine b ulguit Cara
8555 Sweet Valley Drive VaVVey View, OH 44125 1 Phone: 216.328.2240 Fax: 216.642.7900 / www.medsource-one.com
June 30, 2008
Timothy A. Marcovy
Willacy, LoPresti & Marcovi
Re:
Claimant:
Employer.
Claim #:
DOI:
Allowed Condition(s):
File Review
Laura Horvat
Cambridge Home Health Care
04888455
10/15/04
Right wrist sprain/strain; aggravation pre-existing arthritis right wrist
As per your request, f have reviewed all of the documents provided relative to the above-captioned claimant
and claim. I am now writing for the purpose of providing my opinion regarding the prevailing issue of extent
of disability in this case.
For the purpose of my analysis, the following medical records were reviewed:
• BWC FROI dated 10/18/04.
• Records from On the Clock Care dating from 10/18/04 to 1/13/05.
• Consultation report from Dr. Engles dated 1216/04.
• Office notes from Dr. Keith dating from 3/18/05 to 12114107.
• Correspondence from Dr. Keith dated 10/5/07.
• Operative reports dated 10/26/06, 1/25/07 and 7119/07.
• Occupational therapy records dating from 10/8/07 to 12/3/07.
• Functional capacity evaluation report dated 5/7/08.
• IME report from Dr. Randt dated 2/14/05.
• Impairment examination report from Dr. Dinsmore dated 10/23/05.
• IME report from Dr. Krupkin dated 17J14/05.
• IME report from Dr. Magoline.
• Report from Dr. Hochman dated 2/14/08.
With full consideration given to the information contained within the above described medical records, I
submit the following, wi ^h a reasonable degree of medical certainty and probability:
1. What is the current status of Ms. Horvat's disabillty directly and proximately resulting from the
allowed conditions in this claim?
The records in the file indicate that the claimant is still experiencing a significant loss of function of her
dght hand. As such, she does not appear to be capable of performing the full scope of her previous
work activities as a home health caregiver. However, she does appear to be capable of performing
appropriately restricted work activities that would place her in a light physical demand category. This
opinion is based primarily upon the clinical findings documented in her serial occupational therapy
records.
EXHIBIT G
Page 49
2 lias Pdis. Horvat's use of her right hand reached a level of function below that of the legal
standard for loss of use, which is defined as being to the same effect and extznt as if the hand
have been aniputat:ed; that for all practical iritents and purposes she has no use of the hand?
Please state the basis for your opinion.
The records that were reviewed indicate that the claimant's current level of function does not meet
statutory definition for "loss of use". This opinion is based upon the fact that her occupational thetapy
records and for recent functional capacity evaluation document the fact that she has some residual
functional capabilities with her right hand that include the ability to move her fingers and to "grasp a
wide pen".
3. Is the May 7, 2008 FCE report a valid indicafor of Ms. Horvai s level of abi7i y to use "er right
hand? Why or why not? Does the report support the complete "loss of use" of the right hand,
in accordance with a standard set out above? Please state the basis for your opinion on this
point', also.
Unforlunately, the results of the 5I7/08 functional capacity evaluation do not appear to be a valid
indicator of the claimanYs current functional capabilities. The report documented a"medium" validity
rating and noted that the claimant was self-limited in many of the activities. In addition, she failed to
demonstrate any grip strength capability at any of the five settings on the dynamometer despite
showing the capability to grasp a pen. As such, the claimant appears to have made less than a full
effort during the evaluation.
I trust this information will be helpful in providing some additional insight into the claim in question. If you
have any further questions, please do not hesitate to contact my office.
Respectfully,
Scott E. Singer, MD, MPH
Board Certified, Occupational Medicine
EXHIBIT G
Page 50
Ntay 7, 2001 iVtemo E2
State of Ohio
Industrial Commission
Policy Statements and Guidelines
Permanent Partial - Hearing Officer Discretion
Hearing Officers shall be limited in their determinations of disabilities
under O.R.C. 4123.57 to the percentage of permanent partial
impairment based on the medical or Ginical findings specifically
expressed in a physician's report. Hearing Officers are to adopt one
of the impairment ratings. However, when a Hearing Officer
determines that the medical or clinical findings reasonably
demonstrable support a percentage of permanent partial disability
other than an impairment rating as found by one of the physicians,
the Hearing Officer may adopt a percentage of permanent partial
disability which is within the range of impairment ratings as given by
the physicians even though such percentage of permanent partial
disability is not the same as any of the physicians impairment ratings.
The Hearing Officer is to note in the order that the determination is
based upon the medical or clinical findings of a particular doctor or
doctors. Also Hearing Otficers are to note the reports of additional
physicians, if appropriate.
It is the duty of the Hearing Officer to evaluate the physicians' ratings
of impairment and issue the determination as provided by O.R.C.
4123.57.
The parties may agree subject to the approval of the Hearing Officer
to a compromise rating of permanent partial disability, which is within
the range of impairment ratings where medical evaluations are in
conflict.
NOTE: Industrial Commission Resolution. No. R81-7-30 (June 3,
1981)
EXHIBIT G
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2005-Ghio-6377; Siafe ex rei. Miller v. Indus. Comm;
2005-Obio-6371
[Cite as State ex rel. Miller v. Indus. Comm., 2005-Ohio-63711
State of Ohio ex rel. Gary A. Miller, Relator,
V.
Ohio Industrial Cornmission and Fluor Constructors Intelnational, Respondents.
No. 05AP-214
10th District Court of Appeals of Ohio, Franklin County
Decided on December 1, 2005
J. B. Marshall, Jr., for relator.
Jim Petro, Attorney General, and Dennis L. Hufstader, for respondent Industrial
Commission of Ohio.
IN MANDAMUS
DECISION
TRAVIS, J.
{tft1} Jn this original action, relator, G1ry A. Miller, seeks a writ of mandamus
compelling respondent, the Industrial Comnvssion of Ohio, to vacate its order denying
relator's application for the alleged loss of use of his left hand, R.C. 4123.57(B), and
enter a new order that grants relators application.
{112} The matter was referred to a magistrate of this court pursuant to Civ.R. 53(C),
and Loc.R. 12(M) of the Tenth District Court of Appeals. The magistrate issued a
decision that includes findings of fact and conclusions of law and recommended that
this court deny the requested writ of mandamus. (Attached as Appendix A.) No
objection has been filed to the magistrate's decision.
{J3} Pursuant to Civ.R. 53(E)(4), the court conducted a full review of the
magistrate's decision. The court finds that there is no error of law or other defect upon
the face of the decision. Therefore, the court adopts the magistrate's decision as its own
and the requested writ of mandamus is denied.
Writ of mandamus denied.
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SADLER and McGRATH, JJ_, concur.
{qJ4} In this original action, relator, Gary R. Miller, requests a writ of niandamus
ordering respondent Industrial Commission of Ohio ("commission") to vacate its order
denying his motion for an R.C. 4123.57(B) scheduled-loss award for an alleged loss of
use of his left hand, and to enter an award for a total loss of use of his left hand.
Findings of Fact:
{151 1. On August 22, 2004, relator sustained an industrial injury while employed as
a pipe fitter for respondent Fluor Constructors Intemational, a state-fund employer. The
injury occurred when relator was getting up from a lunch table and fell onto his
outstretched left hand. The industrial claim is allowed for "fracture left carpal bone,
closed; other postoperative infection, left; fracture left distal radius," and is assigned
claim number 02-416290_
{$6} 2. On August 28, 2002, relator underwent an "[o]pen reduction intemal
fixation bone graft, application of external fixation device left radius." The surgery was
perfot7ned by George K. Aitken, M.D. According to Dr. Aitken's operative report, the
preoperative and postoperative diagnoses were "[c]omminuted fracture left distal
radius."
{$7} 3_ On May 20, 2003, physical therapist David Kazee conducted a "Functional
Capacity Evaluation" ("FCE"). Mr. Kazee reported:
The patient's Physical Demand Classification is light-medium:
Light-Medium Occasional 35 lbs. Frequent 15 lbs. Constant 51bs.
Stand/walk * * *
Restriction use by the patient is basically any significant left upper extremity
use. The patient can do no reaching overhead with the left upper extremity,
no crawling and no pulling or pushing with the left upper extremity. He is
basically restricted from any occupation that requires left upper extremity
use. The patient can drive a farnily type vehicle but I doubt he can drive a
commercial vehicle requiring a lot of heavy tuming. At this point, the patient
has difficulty getting hand in position that he can tum a steering wheel safely.
The patient is not to do any overhead reaching or crawling or pulling with the
left upper extreniity. *** His left upper extremity is probably at maximum
improvement.
It should also be noted that the patient's job as a pipe fitter is [in] the heavy
EXHIBIT G
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classification: Heavy Occasional 100 lbs. Fre;quent 50 lbs. Constant 20 lbs.
He cannot meet these demands. * * *
ASSESSMENT: From the Musculoskeletal Evaluation the patient is status
post fusion of left wrist_ He is now presenting with a permanent loss of
extension. His wrist is in a flexed position, which is probably not the best
position to have a fusion. He has lost significant range of motion of his left
hand and fingers and left upper extremity in general, still has significant
weakness throughout the left upper extremity. I feel like these deficits are
probably permanent and will not improve over what they currently are. There
was no symptom magnification or symptom exaggeration demonstrated by
this patient during the Musculoskeletal Evaluation.
Comments: The patient's left hand is basically not useable for working
activities" He has to compensate with his trunk and shoulder to get into
positions to be able to use his hands. We allowed the patient to be tested in
comfortable positions, which are not really functional positions_ In short, due
to his wrist being in a permanent flexed position and lacking supination and
pronation he has to compensate with his shoulder and trunk, which is
eventually going to lead to other musculoskeletal problems. His inability to
manipulate fine objects rules him out for being good on any type of
assembly.
The patient had significant increase in hand discomfort, but considering his
pathology, this would be considered normal.
***
*** The patient's job demand as a pipe fitter is in the heavy category to very
heavy category for Physical Demand Classification. He is unable to do this
and it is the personal opinion of this evaluator that he will never [be] able to
do this again. It is also the opinion of this evaluator that the lightmedium
category this patient is currently in is probably his maximum classification
achievement. It also must be noted that this patient is limited to minimal to no
use with the left upper extremity. Light-medium category is what his body
and right upper extreniity are capable of doing [at] this time.
EXHIBIT G
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{l[S} On July 30, 2003, relator moved for K.C. 4123.57(B) scheduled-loss
compensation for an alleged loss of use of his left hand. In support, relator submitted a
report, dated June 3, 2003, frotn Dr. Aitken:
* * * I-Ie continues to have problems with his wrist. It's uncomfortable most
of the time but if he uses it to any significant degree then it will becoane quite
painful. His range of motion has not significantly cliwrged. He's not having
any significant numbness or tingling and he's had no evidence of recurrent
infection.
He had his FCE which rates him as able to do light to medium activity.
Xrays were obtained today and these show severe arthritic change within the
wrist, no evidence of recurrent infection.
In spite of his FCE, I don't believe he has any significant realistic chance to
rejoin the work force. This is based upon the severity of his injury, his
inability to use his left hand for any significant activity, his age and training.
I believe he is at MMI. I do believe he will likely come to a wrist fusion in
the future. Because this is all related to his original injury and treatment
thereof, I do believe this would also [be] considered to be compensable.
5ince he has in essence a wrist fusion with angleosis [sic] of the wrist at 20
degrees of flexion, 10 degrees of radial deviation.
Using the AMA Guide to Permanent Impairment, 5th Edition, Figure 16-28,
16-31 and Table 16-3, he has a 35% upper extremity impairment which is
equivalent to a 21% whole person impairment. I believe this is solely related
to his injury and does not have any element of previous problems or part of a
normal aging process.
{19} On October 2, 2003, at the request of the Ohio Bureau of Workers'
Compensation ("bureau"), Robert Brown, M.D., reviewed the conunission's file and
reported: Allowed conditions are accepted as [a] result of [a] fall that fractured [the
left] wrist. Had surgical fixation of fracture and developed an infection requiring 6
week[sJ of intravenous antibiotics [and] surgical debridements. 1W [injured worker]
had physical therapy ***. [N]oted to have stiffness in wrist [and] fingers. 2/21/03 has
a 25# grip; 6/3/03 xrays shows fracture healed with slight dorsal angulation. Dr. Aitken
found a 21% IWP [impairment whole person].
*** Based on information in file, IW has a 21% IWP-this is not consistent
EXHIBIT G
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with total loss of use of hand.
{$10} On October 30, 2003, relator was exa>:nined, at the enlployer's request, by
Nelen M. O'Donnell, M.D. Dr. O'Donnell reported:
* * * The force of the fall was associated with a closed fracture of the left
wrist. The x-ray report on the day after injury described a comminuted
intra-articular fracture involving the distal radius with mild impaction and
dorsal tilt of the articular surface of the distal radius. Noted at that time was
moderate to severe osteoarthritis involving the f^irst trapeziometacarpal joint.
The patient underwent ORIF [open reduction intemal fixation] 08/28102,
which involved pin insertion, bone grafting and application of EF [external
fixation] at King's Daughters' Medical Center. Postoperative filal showed
osteoarthritic change in the first digit from the trapezium to the distal
phalanx, including significant osteophyte formation at the IP joint of the
thumb. The procedure was complicated by wound infection with S. Aureus;
readmission for IV [intravenous] antibiotics, wound debridement, removal of
bone graft, and insertion of antibiotic beads was required. After discharge,
Mr. Miller continued treatment with IV antibiotics administered at home
under supervision of ID, by his estimate, 6 weeks. This was followed by oral
antibiotic therapy. At 7 weeks post op, EF was removed and PT [physical
therapy] intiated.
Current complaints include pain in the left wrist and hand increased with use,
numbness around the scars, over the thumb and in the fingers, index and ring
fingers. In spite of numbness, he has pain dysesthesia to touch and to heat, as
with hot water on the hand. Other complaints include decreased grasp,
decreased dexterity. The pain is "excruciating" with use, brings him to tears.
At rest, there is a dull ache_ Intensity is graded from 2/10 to 10/10 with
pulling, for instance.
All these signs and symptoms affect function; Mr. Miller reports he is
independent in dressing and grooming with loose clothing with his right
hand. He helps with light housekeeping using one hand; this includes loading
the dishwasher, folding clothes, loading the washer from hampers in the
room. He cannot carry loads. The patient is independent in use of the riding
lawnmower, but cannot trim with a "weedeater".
Medication use is OTC pain medication; although he has [been] prescribed
narcotic analgesia, he does not like side effects and only uses for severe
exacerbation of pain_
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Review of therapy notes suggests this patient gave good effort and was an
active p<uticipant in his own therapy program. In spite of extensive treatment
and good effort, wrist range never reached goaLs set, but, in fact, decreased
over time with fusion into flexion and ulnar deviation. Maximum wrist
extension was 12 degrees passively 11/22/02. Dr. Aitken's notes document a
flare of pain and inflatrnnation in March 2003. At the time of functional
capacity evaluation, May 20, 2003, the left wrist was described as fused into
flexion of 20 degrees. The assessment was that Mr. Miller had significant
impairment of the left arm involving primarily range of the wrist, but also
affecting range of forearm pronation, supination, strength of hand grip, pincti
and sensation. It was offered that the impairments documented would be
associated with disabilities in 2 handed tasks such as material lifting, material
handling, even crawling. Right upper extremity, trunk and lower extremities
were normal.
Mr. Miller reports his surgeon advised him that a wrist fusion might be
considered in the future.
The Comprehensive Vocational Assessment suggested Mr. Miller had the
intellectual and academic abilities to function in entry-level clerical positions,
counter clerk, and sales occupations at the sedentary to light-medium level. It
was suggested that earning a GED and improving math skills would help him
to participate in technical college level training.
***
PIiYSICAL EXAM:
* * * On the left, the wrist was fixed in 30 degrees flexion; there was no
passive or active range elicited. Attempts at passive range were painful. At
rest the left wrist was also in a posture of ulnar deviation 20 degrees; no
active range could be demonstrated_ Attempts at passive range were painful
and did not move the wrist. On the left MCP [metacarpophalangeal]
extension was full; maximum MCP flexion was 40 at the thumb and 80 at
digits 2-5. Left thumb IP [interphalangeal] flexion was quite limited at 10
degrees; this could not be increased passively. Left finger PIP [proximal
interphalangealj f7exion was 70 degrees active and passive_ DIP [distal
interphalangeal] flexion was limited to less than 40 degrees. Because of these
flexion limits and abnormal wrist posture, the thumb could not be brought
into apposition to the finger pads_ The thumb could be adducted against the
index finger to produce a pinch.
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Xrays provided by the patient were rcviewed. There is complete loss of the
wrist joint space.
{111} Following a January 21, 2004 hearing, a district hearing officer ("DHO")
issued an order denying relator's motion for a loss of use award- The DHO's order
states:
The District Hearing Officer finds the injured worker had not established that
he sustained a total loss of use of his left hand, pursuant to O.R.C.
4123.57(B).
Accordingly, his request for a total loss of use award is denied.
The medical evidence does not establish that the injured worker suffers from
contractures and/or ankylosis to such an extent as to render his left hand as
useless as if it were amputated.
ln fact, the reports of Drs. O'Donnell, 10/30/2003, Aitken, 06/30/2003,
Brown, 10/02/2003 and the Functional Capacity Evaluation of 05/20/2003 all
indicate the injured worker still has some use of the hand{112} Relator administratively appealed the DHO order of January 21, 2004.
19[13} 9. Following a March 2, 2004 hearing, a staff hearing officer ("SHO") issued
an order stating:
The order of the District Hearing Officer, from the hearing dated 01 /21/2004,
is Affirmed with additional reasoning_
After reviewing all of the evidence on file, it is the order of the Staff Hearing
Officer that the injured worker's motion, filed 07/30/2003 is denied.
The injured worker has failed to show that he has total loss of use of his
hand. Functionally used does not equal total loss of use of the hands [sic].
The injured worker demonstrated that he has movements in his hand. He is
able to move his fingers.
Staff Hearing Officer also notes [in] Dr. Aitken['s] report where he noted
"thumb could be adducted against the index finger to produce a pinch"
(08/28/2002).
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{114} On March 2`1, 2004, another SHO mailed an order refusing relator's
administrative appeal from the SHO's order of March 2, 2004.
{9115} 11. On March 3, 2004, relator, Gary R. Miller, filed this mandamus action.
Conclusions of Law:
{9[16} It is the magistrate's decision that this court deny relator's request for a writ of
mandamus, as more fully explained below.
{117} R.C_ 4123.57(B) provides for compensation for scheduled losses:
If the claimant has suffered the loss of two or more fingers by amputation or
ankylosis and the nature of the claimant's employment in the course of which
the claimant was working at the time of the injury or occupational disease is
such that the handicap or disability resulting from the loss of fingers, or loss
of use of fingers, exceeds the normal handicap or disability resulting from the
loss of fingers, or loss of use of fingers, the administrator may take that fact
into consideration and increase the award of compensation accordingly, but
the award made shall not exceed the amount of compensation for loss of a
hand_
For the loss of a hand, one hundred seventy-five weeks.
{(118} Two cases cited by relator are instructive. Both cases will be extensively
discussed here_
{T19} In State ex rel. Alcoa Building Products v. Indus. Comm., 102 Ohio St.3d
341, 342-343, 2004-Ohio-3166, atq10, the court succinctly set forth the historical
development of scheduled awards for loss of use under R.C_ 4123.57(B). The Alcoa
court states: Scheduled awards pursuant to R.C. 4123.57(B) compensate for the "loss"
of a body member and were originally confined to amputations, with the obvious
exceptions of hearing and sight. In the 1970's, two cases--State ex rel. Gassmann v.
Indus. Comm. (1975), 41 Ohio St.2d 64, * * * and State ex rel. Walker v. Indus. Comm.
(1979), 58 Ohio St.2d 402, * * * - construed "loss," as similarly used in R.C. 4123.58,
to include loss of use without severance. Gassmann and Walker both involved
paraplegics_ In sustaining each of their scheduled loss awards, we reasoned that "[f]or
all practical purposes, relator has lost his legs to the same effect and extent as if they
had been amputated or otherwise physically removed." Gassmann, 41 Ohio St.2d at 67
* * *; Walker, 58 Ohio St.2d at 403-404[.] * * *
{%19} In Alcoa, the claimant sustained a left arm amputation just below the elbow.
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Continuing hypersensitivity at the amputation site prevented the claimant frorn ever
wearing a prosthesis. Consequently, the claimant moved for a scheduled-loss award for
loss of use of his left arrn.
(1201 Alcoa established through a videotape that the clailnant could use his
remaining left arm to push open a car door and to tuck paper under the ann.
Nevertheless, the commission granted the claimant an award for the loss of use of his
left ann.
{121} This court denied Alcoa's complaint for a writ of mandamus and Alcoa
appealed as of right to the Supreme Court of Ohio.
{gJ22} Affirming this court's judgment and upholding the commission's award, the
Alcoa court explained, at J10-15:
* * * Alcoa urges the most literal interpretation of this rationale and argues
that because claimant's arm possesses some residual utility, the standard has
not been met. The court of appeals, on the other hand, focused on the opening
four words, "for all practical purposes." Using this interpretation, the court of
appeals found that some evidence supported the commission's award and
upheld it. For the reasons to follow, we affirm that judgment.
Alcoa's interpretation is unworkable because it is impossible to satisfy.
Walker and Gassmann are unequivocal in their desire to extend scheduled
loss benefits beyond amputation, yet under Alcoas interpretation, neither of
those claimants would have prevailed. As the court of appeals observed, the
ability to use lifeless legs as a lap upon which to rest a book is a function
unavailable to one who has had both legs removed, and under an absolute
equivalency standard would preclude an award. And this will always be the
case in a nonseverance situation. If nothing else, the presence of an otherwise
useless limb still acts as a counterweight--and hence an aid to balance--that
an amputee lacks. Alcoa's interpretation would foreclose benefits to the
claimant who can raise a mangled arm sufficiently to gesture or point. It
would preclude an award to someone with the hand strength to hold a pack of
cards or a can of soda, and it would bar--as here--scheduled loss
compensation to one with a limb segment of sufficient length to push a car
door or tuck a newspaper. Surely, this could not have been the intent of the
General Assembly in promulgating R.C. 4123.57(B) or of Gassmann and
Walker. Pennsylvania defines "loss of use" much as the court of appeals did
in the present case, and the observations of its judiciary assist use here. In
that state, a scheduled loss award requires the claimant to demonstrate either
EXHIBIT G
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that the specific bodily member was amputated or that the clairnant suffered
the pennanent loss of use of the injured bodily ;.nember for all practical
intents and purposes. Discussing that standard, one court has written:
"Generally, the'all practical intents and purpose' test requires a more
crippling injury than the'industrial use' test in order to bring the case under
section 306(c), supra. However, it is not necessary that the injured member of
the claimant be of absolutely no use in order for him to have lost the use of it
for all practical intents and purposes." Curran v. Walter E. Knipe & Sons,
Inc. (1958), 185 Pa.Super. 540, 547, 138 A.2d 251.
This approach is preferable to Alcoa's absolute equivalency standard. Having
so concluded, we further find that some evidence indeect support.s the
commission's decision. Again, Dr_ Perkins stated:
"It is my belief that given the claimant's residual hypersensitivity, pain, and
tenderness about his left distal forearrn, that he is unable to use his left upper
limb at all and he should be awarded for the loss of use of the entire left
upper limb given his symptoms. He has been given in the past loss of use of
the hand, but really he is unable to use a prosthesis since he has had the
amputation, so virtually he is without the use of his left upper limb ***."
19123} In State ex rel. Tirnmerman Truss, Inc. v. indus. Comm., 102 Ohio St.3d 244,
2004-Ohio-2589, the court granted a writ of mandamus in favor of the employer when
the commission had granted a loss of use award in reliance upon doctors' reports that
did not consider the claimant's actual physical abilities with respect to the body part for
which loss of use was being sought.
{y(24} In Timmerman, the commission award for loss of use of the right hand was
based upon the March 11, 2002 medical file review of Dr. Gibson and Dr_ Bamberger's
April 22, 2002 letter.
($25} The Timmerman court found that the reports of both doctors were seriously
flawed. Dr. Bamberger's report was held to be flawed because it raised questions as to
the author's awareness of "(1) the Walker standard of loss and (2) claimant's
postrecovery activities."(fn 1) Tirnmerman, at 125. The Timmerman court explains:
* * * Nothing in Dr. Bamberger's report indicates that the claimant's degree
of loss is the functional equivalent of an amputation. He instead recites the
claimant's history without discussing his current functional residuals and
bases his loss-of-use assessment on claimant's employment history and the
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fact that the dorninant hand is involved.
Id.
{g{26} With respect to Dr. Gibson's file review, the Timmerman court, at 1)(29, states
that Dr. Gibson "appears to be more cognizant of the Walker loss standard," `I'he
Timtnerman court, at 130, concludes:
Under most circumstances, therefore, Dr. Gibson's report alone would
support the commission's award. Here, however, [State ex ret. Schultz v.
Indus_ Comm., 96 Ohio St.3d 27, 2002-Ohio-3316} demands that the medical
assessment be viewed in the context of claimant's postrecovery physical and
work activities. * * *
{%27} Whether we use the so-called Walker standard of loss, i.e., that "for all
practical purposes" the claimant has lost the hand to the same effect and extent as if it
had been amputated or otherwise physically removed, or we use the Alcoa standard of
loss, i.e., that "for all practical intents and purpose" the claimant has suffered the
permanent loss of use of the hand, the result is the same. In either case, this magistrate
must conclude that there is no evidence in the record upon which the contmission could
have based an award for loss of use of the hand.
{128} Analysis here begins with the DHO's finding: "The medical evidence does not
establish that the injured worker suffers from contractures and/or ankylosis to such an
extent as to render his left hand as useless as if it were amputated."
{$29} In Timmerman, the court notes that loss of a hand under R.C. 4123.57(B) can
be shown under a "flat loss" theory or a "two fingers plus" theory. T'immerman, at 124.
{%30} Apparently, the above finding of the DHO is a rejection of a "two fingers
plus" theory that relator perhaps presented to the hearing officer.
{131} While it is unclear whether relator argued the "two fingers plus" theory before
the commission's hearing officers, relator does not seem to posit the theory here in
mandamus. In any event, none of the doctors who issued reports in regard to relator's
motion opined that relator had lost the use of any of the digits of the left hand due to
ankylosis. For example, while Dr. O'Donnell found "left thumb IP flexion was quite
limited at 10 degrees" and that "maximum MCP flexion was 40 at the thumb," she did
not opine that the left thumb wa.s considered a loss due to ankylosis.
{9132} Dr. Aitken, relator's surgeon, did not evaluate left digit impairment as did Dr.
O'Donnell. Dr. Aitken based his 35 percent impairment rating for the left upper
EXHIBIT G
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extremity entirely upon the "wrist fusion," noting that the left wrist was "fixed in 30
degrees flexion" and that "attempts at passive range of lnotion were painful and did not
move the wrist."
{$33} In short, there is no evidence in the record to support a so-called "two fingers
plus" theory for a loss of hand award.
{134} There is also no evidence in the record to support a "flat loss" theory for loss
of a left hand.
{1#35} While Dr. Aitken, in his June 3, 2003 report, referred to relator's "inability to
use his left hand for any significant activity," he failed to indicate his awareness of the
Walker standard of loss or the Alcoa standard of loss. Thus, under the reasoning set
forth in 1'immerman regarding Dr. Bamberger's report, Dr. Aitken's report must be
viewed as similarly flawed. There is simply no indication in Dr. Aitken's report that Dr.
Aitken understood the standard for determining loss of use.
{136} Moreover, physical therapist David Kaze&s opinion (to the extent that it is
viewed as accepted by Dr. Aitken) that relator's "left hand is basically not usable for
working activities" does not meet the Walker or Alcoa standard for loss of use. As the
Alcoa court notes, the "all practical intents and purpose" test used by the Pennsylvania
courts requires a more crippling injury than the "industrial use" test. Kazee's opinion
that relator's "left hand is basically not useable for working activities" applies an
"industrial use" test that is not appropriate here.
{137} Dr. O'Donnell, who evaluated the industrial injury for the Pmployer, does not
opine that relator has suffered the loss of use of the left hand. She, in fact, renders no
statement whatsoever that could be viewed as an opinion that relator has lost the use of
his left hand. Accordingly, Dr_ O'Donnell's report provides no evidence to support
relator's motion.
{138) Dr. Brown, who conducted a file review for the bureau, opines that the 21
percent impairment rating given by Dr. Aitken is "not consistent with total loss of use
of band_" Obviously, Dr. Brown's report provides no evidence supporting an award for
loss of use of the left hand.
{T39} Based upon the above analysis, the magistrate concludes that there is no
evidence in the record to support relator's motion for an R.C. 4123.57(B) award for loss
of use of his left hand under either the "flat loss" or the "two fingers plus" theory.
{140} Accordingly, for all the above reasons, it is the magistrate's decision that this
EXHIBIT G
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court deny relator s request for a writ of mandamus.
KENNE'CH W. MACKE MAGISTRATE
Footnotes:
1. State ex rel. Walker v. Indus. Comm. (1979), 58 Ohio St.2d 402.
OH
OH Unpublished App.
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EXHIBIT G
13 c,r ) 3
6/27m$.,b
Aa6w
Westlaw.
Page I
Not Reported in N.E.2d
Not Reported in N.E.2d, 2IX)2 WL 1377869 (Ohio App. 10 Dist.), 2002 -Ohio- 3255
(Cite as: Not Reported in N.E.2d, 2002 WL 1377869 (Ohio App. 10 Dist.))
HState ex ret. Stringer v. Hamilton Plastics
Ohio App. 10 Dist.,2002.
t11 Workera' Compensation 413 C^1306
413 Workers' Compcnsation
CHECK OH7O SUPREME COURT RULFS FOR
REPOR77NG OF OPINIONS AND WEIGHT OF
LEGAL AUTHORITY.
Court of Appcals of Ohio,Tenih District, Franklin
Cot nly.
STATE of Ohio ex rel. Laura STRINGER, Relator,
V.
IiAlvtit.TON PLASTICS, C. James Conrad,
Administrator, Ohio Bureau of Workers' Compensation
and The Industrial Commission of Ohio, Respondents.
No. OIAP-1157-
413XVi Proceedings to Secure Competisation
413XVI(G) Medical Examination
4] 3k1306 k. Right to Examination in Gcneral.
Most Cited Cases
Employer could require workcr s cotnpensation claimant
to submit to functional capacity examination, after she
had bocn examined by employer's physician, although
claimant asserted that she could be compelled to submit
to only one examination; functional capacity exami nat i on
was not second medical examination, but a series of tests
used to assist examining physician in his assessment, and
functional capacity examination was neccssary to enable
employer to defend against claim. R.C. S 3123.651; OAC
4123-34)9a. b
Dccided June 25, 2002.
)2j Workers' Compensation 413 C^1686
Workers' compensation claimant sought mandamus
revicw of a decision by the Indnstrial Commission that
denied her permanent total disability (PTD) benefits. The
Court of Appeals adopted the decision of StephanieBisca
Brooks, Magistrate, which held thal: (1) employer could
require claimant to undergo
functionalcapacityevaluatioo; (2) claimant was not
entitled to depose vocationa) expeil; and (3) Commission
was not rcqnired to discuss notunedical factors already
discussed in vocation reports.
413 Wodcers' Compensation
413XV1 Proccedings to Secure Compensation
413XVi(O) Affidavits and Depositions
413k1(,86 k. Discovery and Depositions. Most
C.itcd Cascs
Worker's compensation claimant was not entilled to take
deposition of vordtional expen, where claimant merely
stated her disagreement with experi's opinions, but did
not point ont substantial disparity bctween this opinion
R.C. $ 4123.09;
and others' opinions.
4121-3-09(A)(6)(d).
Objections overtuled; writ denied.
J7j Workers' Compensation 413 p1756
West Headnotes
cQ 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works.
EXHIBIT G
Page 65
Not Reported in N.E.2d
Not Rcported in N.F.2d, 2002 WL 1377869 (Ohio App. ll) Dist.), 2002 -Ohio- 3255
(Cite as: Not Rcported in N.E.2d, 2002 WL 1377869 (Ohio App. 10 Dist))
413 Workers' Compensation
J13XV1 Proceedings to Secure Compensation
413XVt(P) Hearing or Trial
41 3XV1(P)G Findings of Fact and Conclusions
of Law by Board, Commission, or Court
4 13k1751 Particular Facts and C.onclusions
413k176 k. Eamings and Impairmeut
of Earning Capacity. Most Cited Cases
Industrial Cvmmission was not required to specify and
explain the combined impact of nomnedieal and vocation
factors considered in denying claaim for pemrenent toL•d
distbility (P'1'D) benefits, whcre vocational n7wrLS fully
discussed nonmedical factors.
ln ivlandamus on Objections to theMagislrate'SJlecision
Kearns Company, LPA, and Michael A. Kearns, for
relator.
Vorys, Sater, Seymour & Pcasc, LLP, and Richard L.
Moore, for respondent Hamilton Plaslics.
Be^tr;omerti; Attorney GeneraL, and Janinc
1lancock Jones, for respondent Industrial Commission of
Ohic.
Pagc 2
r(xlucstat writ.
tj 3) Relator has ftled objoctions to the magistrnte's
decision, and the matter is now before this court for a
fidl, independent review.
('¶ 4) Relator's objections to the contraiy, this court
agrees with the magistrates analysis of the pertinent
issues. Accordingly, for the reasons sel forth in the
magistrate's decision, this court overrutes rclator's
objections and adopts the magistrate's decision as its own,
including the findings of fact (with a corrected date of
May 16, 1988 in the first paragraph of the findings of fact
and a correction from TTD to FTD in the tlurteen0i
paragraph ofthe findings of fact) and c,onclusions of law
contained therein. In accordance with the tnagistrate's
decision, this oourt hereby denics the requesled writ of
mandamus.
OBjections ovemJed,• writ denied
PETREE, J.
*1 {Sl 1) Relator, Laura S1rYnger, has filed this original
action requesting that this court issue a writof ntattdamus
ordering respondent Industrfal Comrnission of Ohio
("commission') to vacate its order which denied her
application for pemtattcnt total disability ("PTD')
compeosation and to issae an order finding that she is
entitled to PTD compensation purxuant to Slnfe ez rel.
Gayr 91ihui(1994) 6SOhioSt.3d315.626N.E.2d666.
(¶ 2) PAusuant to Civ.R 53C and Loc.R. 12(M) of the
Tenth Dislrict Court of Appeals, this matter was referred
to a magistmte of this court, who examiced the evidence
and issued a decision, including findings of facf and
conclusions of law. (Attached as Appendix A.) Therein,
the magistrate concluded thal the commission did not
abuse its discretion in denying her application for PTD
compensation and recommeMed that this court deny the
TYACY P.J., and DESHL.ER J., concur.
APPENDIX A
MAGIS"PRATE'S DFCISION
Rendered on March 11, 2002
tN [vfANDAMUS
(9 5) Relator, Lauta Stringer, has filed this original
action requesting that this court issue a writ of mandamus
® 2008 ThomsoNWest. No Claim to Orig. U.S. Govt. Works.
EXHIBIT G
Page 66
Not Reported in N.E.2d
Page 3
Not Reported in N.E.2d, 2002 WL 1377869 ( Ohio App. 10 Dist.), 2002 -0bio- 3255
(Cite as: Not Reported in N.E.2d, 2002 WL 1377869 ( Oltio App. 10 Dist.))
ordering respondent Indusuial t:ommission of Ohio
("commission") to vacate its order which denied her
application for permaucnt total disability ("YS'D")
compcnsation and asked this court to order the
commission to find that she is entitled to PTD
compensation pursuant to .Stare ex reL Gac r. tJihrn
(1994)68 Ohio St 3d 315. 626 N E.2d 606.
Ihindings QfYact:
{U 6) 1. Relator has sustained two work-related injuries.
The first injury occurred on August 6,1997, and has been
allowed for nonspecific conditions involving the left ann
and liand, but specifically disallowed for left and right
c•uoal tonttel s-ndrome and aggravation of preexisting
carpal tunnel svndrorne le8 and right The second injury
occurred on May 16, 1998, and has been allowed for:
"Hcmiated disc L4-5 and L5-S l; right foraminal stenosis
at L5-Sl •, failed back syndrome."
{N 7) 2. Relator has bad two surgeries perfortned on her
back, the first in 1990. Relator reinjured her back in
1992, and tlte second surgery was performed in 1993.
(¶ 8) 3. Relator last worked in I996.
*2 (1 9) 4. On March 23, 2000, relator frled the
application seeking PTD cvmpcnsation. At the time of
the application, relator was sixty-eight years old, had
completed the sixth grade, had workcd as a school bus
driver, a real estate agent, and a barmaidlwaitrtss.
{¶ 10) 5. Relator was examined by Dr. David C.
Randolph who issued a report dated May 23, 2000. Dr.
Randolph concluded that relatorwas capable of returning
to sedentary work activities; however, he reconnnended
tlwt a functional capacity examination was necessary in
order to fully address this issuc. Dr. Randolph listed the
following functional litnitations:
{¶ 1 I}Based solely on subjective infonnation and the
objective physical exanrination, it is nty opinion she
should be capable of work related activities in a
sedentary physical demand characteristic only. She
should avoid prolonged work in a single position but be
permitted frequent position changes as needed.
Bending, twisting and s(ooping may be performed on
a rninimal basis. Stte shoutd avoid lifting or carrying
objects weighing in excess of 10 pounds.
{¶ 12) 6. Because Dr. Randolph indicated that a
functional capacity examination was necessary, relator
was dvected to report to Richard J. W ickslrom, PT, CPE.
Relator contested the issue of attending this exam;
however, the hearing administntor issued an order
finding that the examination is not a "second"
examination but that it was a serics of tests used to assist
the examining physician in his assessment and that
rclator was nstuired to attend and participate unless she
couldshow good cause preventing her front p:rrticipating.
{1l3} 7. Mr. Wickstrom examined relator and issued a
report dated August 10, 2000. Mr. Wickstrom concluded
that rciatoes liHing abilities werc in the sedealary to
sedentary-light range. He indicatod Ihat relator could lift,
carry, push, pull up to fiftecn pounds with the exeeption
of her upper lifting and pushing being confined to 6ve
pounds. Retator was trmestrieted in her ability to sit and
could oeeasionally stand and walk; occasionally drive but
never use foot controls witlr both feet; however, could
occasionally use foot controls with one foot; hand use
with both bands was restricted to freqnently; hand use
with one hand was unrestricted; reaching with both arms
was restricted to ocpsionally; reaching with one ann was
restricted frequently, stooping andbending was restricted
0 2008 Thamson/West. No Claim to Orig. U.S. Govt. Works.
EXHIBIT G
Page 67
Not Reported in N.F.2d
Not Rcponcd in N Y.2d, 2002 WL 1377869 (Ohio App. 10 Disl.), 2002 -0hio- 3255
(Cite as: Not Reported in N.E.2d, 2002 WL 1377869 (Ohio App. 10 Dist.))
to frequeutly; and relator was precluded from crouching,
crawling, and clintbing. Mr. Wicksunm concluded thal,
based solely upon the allowed conditions, relator is
capable of performing the full range of jobs requiring
sedentary physical demands and a limited range of jobs
that requirc light physical detnands. He indicated further
tIL1t tLe employer had previously created ajob which was
consistent with her limilations but that relator had
stopped performing that job due to 417tertension and
problems with her hands. He opined that relator had
reached rttaximum medical improvement and rhal it was
unliketythatshewouldachieveany hs*ant' lfunctional
improvement with any frulher skilled thempy.
x3 (¶ 14) 8. Relator was also examined by Dr. Kennefh
R. Hanington on October 19, 2000. Dr. Hanington opitted
that she had fcached maximtmt medical itnprovement,
assessed a twenty-five percent whole petson impairment,
concluded that she was unable to rehun to ber formcr
position of employment bnt that she would be capable of
performing other work in a sedentary capacity. Dr.
Hanington completed an occupational activity assessntent
wherein he indicated that relator could sit, sland, and
walk for tbnc to five hours; was unrestricted in her
ability to carry, push, pull or otherwise ntove up to ten
pound.c; could occasionally climb stairs and reach
overhead; was unrestricted in her ability to handle objects
as well as lift at waist and knee level; was preclnded from
climbing laddcm, using foot controls with her right foot,
cronching, stooping, bending, and kneeting as well as
rcaching at floor level.
(¶ 15 ) 9. An employability assessment was prepared by
Mark A. Anderson, MS, LPC, CDMS, dated September
28, 2000. Parsuant to the medical teports of Drs.
Hanington and Randolph, Mr. Anderson concluded that
relator could perform the following jobs:
(¶ 16)Telemarke(er, Information Clerk, Appointment
Page 4
Clerk, Patcher, Security Camera Monitor, Docuntent
Prepttrc:r-Microfilm, Order Clerk-Food & Beverage,
Film Touch-Up Inspcctor, Touch-Up Scrccncr Printed
Circuits, Sorter, Credit Authorizer, Bonder, Taper,
Ampoulc Sealer, Preparer.
{}l 17) Mr. Anderson opined that, at age sixty-eight,
relator would have more difficulty than her younger
counterparts in learning new skills but that the
occupations he listed were entry level occupations that
did not rrquire complex tasks. He noted that the highest
level of scbooling she completed was the sixth grade and
that she had no diplorna or GED. However, he noted that
she had obtained a real eslate license whicb ltad lapsed
because she had not complied with the continuing
education requirentents. With regard to her wurk history,
Mr. Anderson noted that relator has worked in skilled
and semi-skiltcd jobs and that her work as a real estate
agent, being skilled, would have required the ability to
read, write and perform basic mathematical fnnctions. He
concluded that it was unlikely that rclator would benefit
from a remediation program but restated thal she was
capable of entry level sedentary occupations. He
concluded that if relator wen: to actively seek
employmeut she would benefit from job placement
assistartce to learn how to market herself to prospeciirc
cmploycrs.
(118) 10. An employability asse.ssmentwaspreparedby
Craig Johtutnn, MRC, CRC, and daled January 20, 2001.
Mr. Johnston noted that rclator's past work history
required her to demonstratc seventh to eighth grade
reasoning and languageproficiencies as well as fourth to
sixth grade levels of mathematical proficiency. Based
upon the reslrictions identified by Drs. Randolph and
Hanington, Mr. Johnston indicated thal relator could
return to work in light assembly, or work unrelated to her
past employmcnt but within her basic vocational
capacities. Ele listed the following positions: "Parking-Lot
Boolh Attendant, Surveillance-System Monitor, and
Cci 2008 ThomsonlWest. No Claim to Orig. U.S. Govt. Works.
EXHIBIT G
Page 68
Pagc 5
Not Rcporled in N.E.2d
Not Rc}xntcd in N.E2d, 2002 WL 1377869 (Ohio App. l0 DisL), 2002 -0hio- 3255
(Cite as: Not Rcported in N.E.2d, 2002 WL 1377969 (Ohio App. 10 Dist.))
Bonder."Relator's age was seen as a pMcntial barrier but,
Mr. Johnston indicated that it would not be, by ils.elf,
work protribitive. He noted that relator had last worked in
1996 when she was sixty-four years old. lie saw telatods
cducation as a potential barrier to employnmenL Her prior
work historv indicated that she has demonstrated
temperaments for perforrning repetitive activities and
dealing with people. He noted hnther Utat her
semi-skilled work hi slory reflectedan ability to overcorne
lier marginal cducation and to obtain employment despile
not possessing a lugh school diplorna
•4 {¶ 19) 11. On November l, 2001, naator filed a
motion asking to depose the vocational expert, Mr.
Anderson. In her motion, relator sought clarification as
to several issues pertai ning to conclusions reachedby Mr.
Anderson. Nowhere in her motion did n;lator indirate
that there was a substantial disparity bctw•een the n.•pon
of Mr. Anderson and the reports of any other vocational
expcrts.
{¶ 20} 12. By order dated lanuary 18, 2001, a staff
hearing officer (" SHO") denied relatols request as
follows:
(¶ 21)Following review of the claim frle and all
rclcvant evidence, it is the finding of the Staff Hearing
Officer that the claimant's motion is anreasonable
because the reasons set forth by the ctaimant's motion
tnerely state ttte opinions and conclusions of Mr.
Anderson with which the claimant disagrr:es. The
claimant has not provided any other evidence which
would contradict the conclusions of Mr. Anderson and
detnonstmte any type of snbstantial disparity.
Therefore, it is the order of the Staff Hearing Officer
that the claitnant's motion is deniotL The processing of
all pending issues is to resume.
(122) 13. Relator's application for P71) compensation
was heard before an SHO on March 20, 2001, and
resulted in an order denying relator's request for 771)
compensation. The SHO relied upon the reporis of Drs.
RandolphandHanington,andMr. Wickstrom,Anderson,
and Johnston. Based upon the reports of Drs. Randolph
and Hanington. the SHO concluded that mlator retained
the physical functional capacity to perfonn employment
activities wMch are sedentary in nature. After
srmtmarizing the vocalional evidence provided in the
reporis which were submitted, the SHO concluded as
follows:
{I 23}Thc Staff Hearing Officer finds that ihe
claimant's age of 69 years is a barrier to the claimant
with regard to her ability to return to and compete in
the workforce. The Staff Hearing O@icer further finds,
however, that age alone is rwt a factor which would
prevent the claitnant from returning to work. The Staff
Hearing Officer Curther finds that the claimant's
nwrginal educalion would be a barrier to the claimant
with n:gard to her ability to retrun to work. The Staff
Hearing Oflicer further finds, however, that the
claimant has never had more than a marginal
education and il has not prevented her from working in
the past The Staff Hearing Officer further finds that
not only has it not prevented the claimant from
working in the past, it has nat prevented the claimant
from performing skilled employment activities in the
past. The Staff Hearing Officer further finds that
conflicting evidence exists concetning the claimant's
ability to read, write and performbasic math. The Staff
Hearing Otficer notes, however, that the claimant's
academic skills did not prevent her fmm obtaining a
n^_l eslale license. The Staff Hearing Offrcer further
finds that the fact that the claimant has performed
skilled employntent activities in the past is evidence
that the claimant pos.sesses the intellectual capacity to
learn to perform at least unskillyd employment
activities in the future. Based upon the report of Mr.
Anderson, the Staff Hearing OfScer finds that the
claimant posses [sic ] academic skills tbat are suffrcient
for the performance of many entry level sedentary jobs.
0 2008 Thom.sou/West. No Claim to Orig. U.S. Govt. Works.
EXHIBIT G
Page 69
Not Rcported in Nfi.2d
Not Reported in N. E.2d, 2(x)2 WL 1377869 ( Ohio App. 10 Dist ), 2002 -Ohitr 3255
(Cite as: Not Reponcd in N.E.2d, 2002 WL 1377869 (Ohio App. 10 Dist))
The Staff Hearing Officer further finds that although
the claimanl, at the age of 69 years, would not be a
good candidale for mhabilitation ur mmediation,
claimant is capable presently of entry level sedentary
occupations. The Staff Hearing Officer further finds
tbat the claimant has demonstratcd tlre following
temper.unems in her work ltisiory which might be
heipfui to hcr in the performance of futum
employment: perfonning mpelitive, or short cycle
work; dealing with people; making judgments and
dccisions and itilluencing people in their opiniont,
attitudes, and judgments. The Staff Hearing Otficer
accepts the residnal funetioual capacitits opinions of
Dr. llanington and Dr. Randolph. Based upon the
opinion of Mr. Anderson, the Staff Hearing Offic,cr
finds that the claimant would be capable ofperforming
the following jobs immediatcly: Seauity Camera
Monitor; Document preparer-Microfihn; Order
Clerk-Food and Beveragc;Film Touch-Up Inspector
Touch-Up Screener-Printer Circuits; Sorter', Bonder,
Taper; Amponle Sealer, and Prepater. 'The Staff
Hcaring Officer therefore finds tbat the claimant is
capable of sustiined remunerative employnnvt and is
not pcrmancntly and totafly disabled. Claimant's
Application for Permanent and Total Disability filed
3/23/2000 is"therefote dcnied
Page 6
the mmmissionahused its discn:tion by entering an order
which is not supported by any evidence in the record.
Stare ecr rel. F_(Iiort v. Indus. Cnnnn. (19R6). 26 Ohio
St3d 76 497 N.E.2d 70. On the other hand, where the
record contains some evidence to support the
commission's findings, there has been no abuse of
discrelion and rnandamus is not appropriate. ,Stnte ex re1.
I.euisv. DirnnondFoundrvCa (1987), 29Ohio S1.3d56.
505 N.E.2d 962. Furtbermore, questions of credibility
and the weigbt lobe given evidence areclearly within the
discretlon of the commission as fact finder. .S(r,re ex rel.
Teece v. Indu.c. Comm. (1981 L fiR Ohio St2d 165. d29
N.E.2d 433.
Conclusions ojl,aw:
(1 26) The relevant inquiry in a detenmination of
perrnancnt total d'rsabitity is claintant's ability to do any
sLstained remuncrative employment. State ex rel.
Dnrn/ancic v. Indus. Camm. (199J1. 69 Ohio St.3d 693.
635 N.E.2d 372. Generally, in making this
determination, the commission must consider not only
n>edical impairrnents but, also, the claimant's age,
education, wark recard and other relevant nonmedical
fadors..Slateexrei Stenhensonv Indus.C'nnmr.(1987)
31 Ohio St3d 167. 509 N.E.2d 946. Thus, a claimant's
nrodital capacity to work is uot dispositivc if the
claimaul's nomnedical factors foreclose employability.
Srnle e.r rel. Gm• v. ,IfiLm (19941. 68 Ohio St.3d .i 15,626
N.E.2d 666. The commission must also specify in its
order what evidence has been relied upon and briefly
explain the reasoning Por its decision. State ex re1. Vofl
v Indus. Cnmm. 1991 57 Ohio St. 3d 203. 567 N.E.2d
Z45.
1125) In ordcr for this court to issue a writ of nwndamus
as a remedy from a determination of the commis.sion,
relator must show a clear legal right to the relief sought
and that the conunission has a clear legal duty to provide
such rel ief..Stnre ec ref.1're.cslev v. Indus. Cornm. (1967).
11 Ohio St.2d 141. 228 N.E.2d 631. A clear legal right to
a writ of mandamus exists where the relator shows that
(127} Relator raises the following thrce argnments in
this mandamus action: (f) the commission abused its
discretion by finding that relator was obligated to
undergo a ffimetional capacity examination requested by
Dr.l2andolph who examined relator at the request of the
self-insured employer, (2) the commission abused ils
discretion by finding that relator was not entitled to take
'5 {¶ 24) 14. Therealier, rei•uor filed thc instant
mandamtvs action in this court.
® 2()08 ThomcotilWest No Claim to Orig. U.S. Govt. Works.
EXHIBIT G
Page 70
Not Reponcd in N.E.2d
Not Reported in N.E.2d, 2002 WL 1377869 (Ohio App. 10 Dist), 2002 -0ltio- 3255
(Cite as: Not Reported in N.E.2d, 2002 WL 1377869 (Ohio App. 10 Dist.))
the deposition of vocational expert Mark Anderson when
the report was unclear and contradictory on its face; aad
(3) the comtnission abused its disctetion by failing to
adeqmtlely specify and explain the combined impact of all
of the nonmedical vocational factors as requirai in
Stephenson, suprn.Eor the reasons that follow, this
magistrate finds that mlator s arguments lack merit.
J 1}(¶ 28) R.C. 4123.651 prmrides for the examination of
a claimant by a physician of the employets choice and
providcs in pertincnt parl as follows:
(¶ 29) (A) The employer of a claimant who is injured
or disabled in the conrse of his employment nray
require, without the approvat of the administrator or
the industrial commission, that the claimant be
examined by a physician of the employer's choice one
time upon any issue asserted by ttte eniployce ***.
Any further mquests for medical examinations shall be
inade to ihe commission which shall consider and rute
on the request. 'fhe employer sball pay the cost of any
examinations initiated by ihe employer.
*6 {1 30}0hio Adm.Code 4123-3-09(a) and ta) provide
additionally, in relevant part, as follows:
(131)(a) In no event will the claimant bc examined
tnore than one titne at the requcst of the employer on
any issue that is assetted by the claimantor which is to
be considered by the commission, during the time Ihat
the specific matter asserted or that is in controversy
remains pending final adjudication before thebureau or
commission.
{¶ 32) (b) If after a medical exaroinatian of the
claimant undcr pamgmph (A)(5)(a) of this nilc on an
issue tltat mmains in controversy and has not been
finally adjudicated, an employer asseRs that an
additional medical examiruttion by a doctor of the
Page 7
employer's choice is essential in the defense of the
claim by thc employer, writtcn request for such an
cxarnination shalt be suburlticd to the hearing
adnrinistretor oniy in cases where there is a dispute as
to the rcxtuest for additional examination. ***
(133) All nemnable expenses of such examination,
including any travel expense shall be paid by the
employer inrnrediately upon the receipt of the billing.
s*:
(134) Relator ditects this coun's attention to (A)(5)(a)
and not (b). Obviously, pursuant to (5)(a) the enrployer is
only entitled to have relator examined one timc on any
issue that is asserted by relator. In the present case, the
employer requircd that relator be seen by Dr. Randolph.
However, within the body of Dr. Randolph's report, he
sper,tifically noted that a functionalcapacitiesevaluation
was necessary in order to fully address the issue of
whether relator could reehrrn to sedexdary work activities.
The relator challenged this ret(uest and the matler was
heard before an SHO. The SHO specifically concluded
thal thc upcoming examination with Mr. Wickstrom was
not a second examinationbut was part of a series of lests
uscd to assist an examining physician in his assessment,
rdered telator to attend unless she could show good
and on
cause preventing her from participating in the Icsting.
Relator did not appeal this order nor does she present any
persuasive reasons evidencing good cause.
tj 35) The SHO concluded that the employer wa.s not
requiring relator to submit to a second exandnation. In
looking at (5)(b), it is apparent that there is a certain
atoomttofdiscretion whereby thecomrnission can require
a claimant to submit to a second medical examination at
thc employer's request. As sucil there is no absolute right
as relalor contends thal she would only be forced to
wbmit to one medical exarnination at the employer's
request instead, it is apparent that a second examination
® 2008 ThonrsonlWest. No Claim to Orig. U.S. Govt. Works.
EXHIBIT G
Page 71
Not Reported in N.E.2d
Not Reported in N.E.2d, 2002 WL 1377969 (Ohio App. 10 Dist.), 2002 -Ohio- 3255
(Cite as: Not Reported in N.E.2d, 2002 WL 1377869 (Ohio App. 10 Dist))
may be requircd if the employer asscrts that the
additional medical exa mination is essential in the deferese
of the claim by theemployer. Given the foregoing, rclator
ltas not demonslrated an abuse of discretion in Ihis
regard.
[2{{¶ 36) Relator also contends that the commission
abused its discretion by denying her the opportunity to
depose vocational expert, Mark Anderson.RC. 4123D9
vests the commission with the authority to allow the
taking of depusitions and provides as follows:
*7 (¶ 37)In claims filed before the industrial
commission * * * by injured cmployees *•' on
account of injury * *' sustained by such employees in
the coursc of their employment, the commission * * *
may cause depositinns of witnesses tesiding within or
without the state to be taken in the manner prescribed
by law for the taking of depositions in civil actions in
the court of common plcas.
{¶ 38}Ohio Adm.Codc 4121-1-09(A)(G) provides a
procedure for obtaining the oral deposiUion of an
industrial commission physician. OMo Adm.Code
1123-3-09(A)L6)LdJ enumerates the faetors to be
considered in determining the reasonableness ora request
for a deposition and provides, in pertinent part:
(¶ 39)* **[W)hether a substantial disparity exists
between various medical repotts on the is,atc that is
under contest, whether one oredical report was rclied
upon to the exctn.sion of others, and whether the
request is for harassment or delay. * * *
(9 40) Relator filcd a nrotion seeking to depose Mr.
Anderson and (he rnatter was hcard bcfotc an SHO who
denied the motion aHcr dctermining that it was
mueasonable becausc relator's only basis was that she
disagrced with the expert's opinion. The S}IO concluded
Page 8
that them was no evidence presented to show that Ihere
was a substantial disparity between the report of Mr.
Anderson and the repons of the others.
{9 4 t) The decision whetber to grant or deny a party the
right to depose a witness in connection with a workes'
compensation case is discmtionary. 1,7V Sree! Co. v.
Indus. Convn. (20M), 140 Oho App.3d 680. R.C.
4123.09 is a pennisaive statute giving the cmnmission
discretion and indicated the cornmission nray cause
depositions to be taken. There is no right, as relator
asserts, nequiring the commission to grant a party's
request to take a deposition under any circurnstancct In
the present case, relator did not indicate in her motion
that a substantial dfsparity existed betwcen the rcpon of
Mr. Anderson and a report of others. I nstead, shc merely
listed opinions stated by Mr. Anderson and indicated that
she wanted to scek clarification as to those issues. Based
on the record, it cannot be said that the comrnission
abused its discretion by denying relator's request to
depose Mr. Anderson.
}3l{142} Lastly, relator contends that the comnrission
did not adequately specify and explain the combined
impact of all the noumedical vocational or factors as
required by Stephenson, supra. Relator contends that the
commission merely noted the nonmedical vocational
nuxlical fac7ors witbout explaining them. This magistrate
disagrees.
{143} In the prtsenl crse, the comrnission determined,
that from a medical standpoint, relator could physically
engage in scdentary work. 'fhereaRer, the commission
summarized the conclusionsbasedby the three vocational
expens upon which the commission specifically relied in
denying re.lators application for PTD compensation. The
comnrission has the discretion to accept one vocational
neport while rejecting another vocational report. Or, the
cormttission can reject all the vocational reports and
rO 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works.
EXHIBIT G
Page 72
Not Reportcd in N.E.2d
Not Reported in N E 2d, 2(H)2 WL 1377869 ( Ohio App. I l) Dist.). 2002 -0hio- 325i
(Cile as: Not Reported in N.E.2d, 2002 WL 1377869 (Ohio App. 10 Dist.))
conduct its own analysis of the nonmedical fadors. See
Stafe ex reI.In<:kcnn v. Indtr.c. Comm (1997j, 79 Ohio
St.:d 266 680 N.E.2d 1233. Furthcr, if tlre vocational
reports extensively discuss and analyze all the relevant
nonmedical factors, the comrnission does not nced to
repeat tlat analysis in ils order. State ex ret. Hunt v.
Indus. Comm. (Sept. 28, 1995), Frenklin App. No.
94AP-1659, unrcported (Memorandum Daision); State
ex rel. Freeman v. Inrlus. Comm. (Mar. 17, 1998),
Franklin App. No. 97AP-251, tuucported(Mcrnorandum
Decision).
*8 (¶ 44) In the present case, the vocational experts did
provide extensive explanations of lheir analysis of We
norunedical factors. The commission relied upon three
vocational repons.In addition, thecommissionconducted
its own analysis and again cited the vocational report of
Mr. Anderson. '1'he commission found that relators age
of sixty-nine years is a barrier with n:gard to her ability
lo relurn to compele in lhe workforce; however, the
comntission concluded that age alone is not a factor
which would prevent this relator from retuming to work.
The record indicates that relator had worked up until she
was sixty-four years old- With regard to relator's
education, the SHO noted thst her marginal education
would be a barrier with regards to her ability to return to
work. However, the SHO noted that relator had never had
ntore than a marginal education in the past and thal she
had not been prevented from working. Further, the SHO
noted that rclator had obtaincd a mat estate license,
despite her alleging that she was not able to read, write or
perform basic math well. The SHO notod that them was
conflicting evidence in the record conceming retatois
ability lo read, write and perfonn basic math. The SHO
notcd further that relator has performed skilled
employment and that she possesses the intellectual
capacity to learn and perform skilled employment
activities in the futttre. Based upon the report of Mr.
Atrdersnn, the SHO found that rclator possessed academic
skills which are sufficient for the pcrformarrce of many
entry level sedentary jobs. The SHO notcd that relatoe s
Pagc 9
priorwork history indicates certain tempcr.tntenls wfticlt
would be helpful for her in the perfonnancc of futurc
cmployinent: performing repetitive or short-cycle Nvork;
dealing with people, making judgmcnts and decisions
and influencing people in thcir opinioas, attitudes, ancl
judgrncnts.
(¶ 45) Relalor directs this caurt's atlention to the
vorational evidence she submitted; however, Ihe
commission clrose not to rely on that vocational expert
and that faci does not constitute an abuse of discretion.
{146} Based on the foregoing, this magistrate concludes
that relator has not demonstrated that Ihe comtnission
abused its discrciion in denying her application for PTD
compensation and retator's requcst for a writ of
mandamus should be denied.
/S/Stephanic Bisca Brooks
STEPHANfE BiSCA BROOKS
MAGISTRA"[E
Ohio App. 10 Dist.,2002.
State cx reL Stringer v. Hanulton Plastics
Not Rcported in N.E.2d, 2002 WL 1377869 (Ohio App.
10 Dist.), 2002 -0hio- 3255
FND OF DOCUMENT
® 2008 Thornson/West. No Claim to Orig. U.S. Govt. Works.
EXHIBIT G
Page 73
N;estlaw.
Not Reported inN.E.Zd
Page I
Not Reported in N.E?d, 1990 WL 187466 (Ohio Aop. 2 Dist.)
(Cite as: Not Reporied in N-E.2d, 1990 Wl, 187466 (Ohio App. 2 Dist.))
err in nllowing a physic-el therapist to offer inedical
C
Zinn v. L.cach
Ohio App-, 1990.
causation testimony; and (4) did the trial court erz
in overruling a motion for new trial.
Only the Westtaw citation is currently available.
CHECK 01410 SUPREMF- COURT RULES FOR
REPORTING OF OPINIONS AND WEIGHT OF
LEGAL AUTHORITY.
Court of Appcats of Ohio, Sccond Disuict, Champaign County.
Everett O. Z1NN, et al., Plaintill-Appel I ee/Cross-Appel lant,
V.
Billie N. LEACH, et al-, Dcfcndant-Appel-
lant/Cross-Appel l ce.
Nos. 90-CA-03, 90-CA-08.
Nov. 29, 1990.
John A. Smalley, Young & Alexander Co., L.P.A.,
Dayton, for piaintiff-appelleclcross-appellant
Francis S. McDaniel & David F. Beitzel, Freund,
Freeze & Arnold, Dayton, for defendant-appelIanUcross-appellcc.
Karl F- Paufig, Urbana, for defendant.
William L. Haventann, Pickrcl, Schacffer & Ebeling, Dayton, for dcfcndant Nationwide Insurance
Co.
In his cross-appeal, Zinn presents two issues for our
consideration: (1) did the trial court crr in overruling a mution for prejudgment interest; and (2), did
the trial court err in defening a decision on a supplemental pleading to recover insnrance proceeds
pursuant R.C. 3929.06 pending the outcome of
Leach's appeal to this cottn.
For the reasons stated below we overrule Leach's
four assignments of error. We likewise overrule
Zinn's assignment of errw regarding the Irial court's
decision to defer consideration of his snpplemental
petition pending the outcome of a direct appeal tn
this court. The trial court's decision on these matters will be alfirmed.
However, we reverse the trial court's judgment as it
concerns Zinn's claim for prejudgment interesL Accordingly, the malter will be remandcd for entry of
judgment for prejudgtnent interest.
Factc
OPINION
On March 25, 1985, Everett Zinn was injured when
GRADY, ludge.
the vehicle he was driving was struck broadside at
*'1 This is a ctmsolidated appeal from the trial
an intersection by a vehicle driven by Billie Leach.
court's judgment awarding Plaintiff-Appellee Ever-
Zirtn, a timberman and recording studio owner, re-
ett O. Zinn $400,000 in compensatory damages for
ceived a C-shaped laceration of the scalp which left
injuries suffered in an automobile accident $oth
permanent scarring, tightness and numbness of the
parties have 6ted appeals challenging various parts
scalp. Ile also sustained injury to his inner car res-
or the proceedings below.
ulting in permanent hearing loss in one ear, per-
In his appeal, Leach presents four issues for our
consideration: (1) did the trial court crr in ovcrruling various motions conceming discovery mattets;
(2) did the trial court err in overruliug an objection
to Zinn's closing argument; (3) did the trial court
EXHIBIT G
manent damage to the scmi-circular canal with resulting disequilibrium or vertigo, and pennanent tinnitus or ringing in the ear.
Zinn notified Lcach's insurer, Nationwide Insurance
® 2008 ThomsorJWest. No Claim to Orig. U.,S- Govt. Works.
Page 74
Page 2
Nut Reported in N.E.2d
Not Reported in N.fi.2d, 1990 WL 187466 (Oldo App. 2 Dist.)
(Cite as_ Not Reported in N-E.2d, 1990 WL 187466 (Ohio App. 2 Dist.))
Company, of his injuries two days after the accident
On Februaty 24, 1986, Wingfield transferrcd Zinu`s
on March 27, 1985. Nationwide assigned the claim
claim to Jarnes Suttcr, another Nationwidc adjusn:r.
to William Wingfield, onc of its adjustcrs James
Sutter testified that although the value of the claim
Sacco was WingGcld's supervisor. Wingfield ob-
was probably discussed, he could not recall the
tained a copy of the police report and took recorded
value placed on the claim. Sutter admitted that he
statements
from Leach
and Zinn
(Wingfield
Dcp.'fr. 15, 16). Zinn stated that he had reccived
ncver communicated to Zinn's attomey, Michael
Grnoscr, a settlcment offer (Sutter Dcp.Tr. 9).
treatment for his injuries at two hospitals and from
On June 16, 1986, Nationwide received from Zinn's
three physicians (Wingfield Dep.Tr. 17).
On April 8, 1985, at Nationwide's request, Zinn exccuted an authorization enabling Nationwide to obtain medical and employment records. That same
day Wingfield concludnd that Nationwide owed
"property damage and bodily injury." (Sacco
Dep.Tr. 8). Wingfield itnmediatcly requested infonnation from Drs. Lawrence Mervis and Aftab
attorney a packet of material containing the following: photographs of Zinns automobile and injurics,
a letter from Dr. Mark Roberto to Attorncy Gmuscr
dated May 27, 1986 describing Zinn's truatment, a
letter from Mark Maiu, L.P.T., to Dr. Roberto dated
May 29, 1986 describing Zinn's treatment, and a
letter from Rose Palermo, Zinn's Nashville attor
ney, dcscribing his numerous recording awards.
Butt, and Mercy Medical Center. Nationwide also
souglu a report froni Dr. Mark Roberto. Nationwide
received Mervis's report on May 10, 1985, Butt's
report ou May 22, 1985, and Roberto's repwt on
Sutter testified that he reviewed the packct and requested the adjuster to obrain an independent medical evaluation ( IME), IRS records, a current photograph and wage veriGcation ( Sutter Dep.Tr. 16, 27).
September 4, 1985.
The lME was eventually conducted by Dr. Paulson.
*2 At the end of the 60 day "pricing period," Wing-
Paulson was not called to testify at trial, a fact
freld evaluated Zinn's claim at $6,500 (Winglield
noted by Zinn during his closing argument. Sutter
Dep.Tr. 18). This was latter increased to $60,000,
rcviewed the packet but did not keep notes on the
although neither Wingfield nor Sacco could recall
tnaterial and could not recall what the packet con-
how they arrived at tbis figure (See, Memorandurn
tainod ( Sutter Dep.Tr. 16). Sutter stated that numer-
from Sacco to Wingheld, January 25, 1986, Wing-
ous documents not then containod in his files would
field Dcp: fr. 38). Notwithstanding the deterrrtina-
have been transfnrred to the attorneys representing
tion of liability, no settlement offer was made by
Leach and Nationwide (Sutter Dep.Tr. 9).
Nationwide (Wingfield Dep.Tr. 26). Sacco testified
that while the generat documentation supported
S60,000 in compensation, he did not feel such an
urfer was justifiel absent additional infonnation on
wage loss (Sacco Dep.Tr. 20). Saccu statr.d that no
scttlement was offered because he "did not want to
insult the individual with an offer that would not be
in line with what the injuries were
(Sacco
Dep.Tr. 24).
In a mcmorandum dared February 6, 1987, Sutter
stated that "this might be a limits case but as we
discussed we don't have enough information."
(Sutter Dcp.Tr. 28). A settlement offer of $40,000
was discussed at Nationwide on Febmary 5, 1987,
but never presentcd to Zino (Sutter Dep.Tr. 29).
Sutter admitted that while it was practice to make a
scttlement offer m let the "PlaintifFs artomey know
if he wants to get more money than he is asking he
On January 27, 1986, Wingfield formally asked
has to come up with more prooP or come down in
Zinn by lettor to transmit all medieal and wage in-
with his demand, no offer was made in this case.
formation concerning his claim to Nationwide. This
(Sutter Dep.Tr. 28, 29).
was the rirst and only formal request for records
sent by Nationwide to Zinn ( Sacco Dep.Tr. 21, 22).
*3 On March 6, 1987, Nationwide reccived a dc
EXHIBIT G
Page 75
Not Rcpnrtetl in N.E.2d
Page 3
Not Rrpurted inN.E.2d, 1990 WL 187466 (Ohio App. 2 Dist)
(Cite as: Not Reported in N.E.2d, 1990 WL 187466 (Ohio App. 2 Dist.))
rn.md for setqement frorn Zinn's attome,v, accontpanied by another packet of information containing
records from Mercy Medical Centr:r, reports from
On June 16, 1987, Nicholas Subashi, the first :rttor-
Drs. Butt, DuVall, Farrell and Roberto, consultar.ion
and update reports from Mark Main, L.l'.T., and
numerous letters from various parties conceming
the value of various timber and recording assets
Seguin. Both Subashi and Scguin were employces
owned by Zinn. The accompanying letter reiterated
Zinn's demand for settlement and warned Nationwide that a complaint would be filed shortly because the statute of limitation was close to expiring
ney to represent Leach and Nationwide, withdraw
as counsel of record and was rcplaccd by James P.
of Nationwide. Seguin withdrew as counsel on Octobcr 27, 1987, and was rcplacod by Robert A.
Burke. Finally, Burke was replaced by David
Beitzel on lanuary 20, 1989. The trial court specifcally stated in the substitution entry that the uial
schedule would remain in effect.
(Letter from Attomcy (imoser to Wingfield, March
6, 1987). Nationwide made no response.
On April 25, 1988, Zinn submitted a pretrial staternent in which he listed [he names of witnesses he
expected to call for trial. Included on this list were
Zinn and his wife filed a complaint against Leach
on March 11, 1987, seeking $1,000,000 in com-
Drs. Butt, DuVall and Roberto and Mark Main,
L.P T. Zinn also listai the exhibits he expected to
pen.catory damages.
use at trial.
On March 30, 1987, Leach filed separately an answer to Zinn's complaint and a thirteen branch request for production of documents. The Request for
judgment which sought, in part, judgment on the is-
Production sought "any and all" documents conceming statements by Leach, photos or diagrarrts of
the accident, medical or hospital reports conccming
the injuries produced by thu accident and any other
On July 25, 1998, Zinn Gled a motion for summary
sue of negligence. On August 15, 1988, the court
found Leach negligenr in causing the automobile
accident and judgment was entered accordingly.
Lc.ach did not offer to settle the case.
confinement or treatment for ten years past, medicat opinion and expense, lost income or earning capacity, tax records for three yctrs past, impairrnent
'4 In addition to bling a claim with Nationwide,
Zinn also filed a claim with his insurer, Buckeye
Union Insurance Company, for damages under thc
of daily routines, special damages of any kind, benefiLs From collai.eral sources, investigators reports,
and any evidence intended to be inuoduced at uial
underin.sured motorist provision of his policy.
13uckeye evaluatcd the claim and in December
1988, settled with Zinn for $300,000.
"and any and all documentary evidence whatsoever". The Request was signed by Nicholas E. Subashi, an attorncy in the employ of Nationwide.
Subsequent to filing his complaint, Zinn made additional demands for settlcment from Nationwide. On
March 17, 1987, Attomey Gmoser wrote WingGeld
supplying him with mcdical and economic documentation. Gmoser also demanded settlement for
the policy limits. Similar letters were sent to Nationwide's attomey, Rnbert 13urke, on April 14,
1988, November 14, 1988, and December 6, 1988.
"fhese demands went unanswered. Burke did,
however, acknowledge on September IS, 1988, re-
On January 19, 1989, Zinn notified Leach that he
iotcnded to take depositions from Drs. Aftab Butt
and Michael DuVall, and Mark Main, L.P.T., for
use at trial. On January 23, 1989, Leach's fourth
counsel since institution of the action filed a motion
to compel discovery and also sought a pmter:tive
order cancelling the depositions. The court overruled the motions.
On March I, 1989, Gve days before trial, Nationwide fmally offered to settle Zinn's claim at policy
limits of $100,000. The offer was rejected and the
matter proceeded to trial.
ceipt of Zinn's income tax returns.
EXHIBIT G
© 2008 Thornson/West. No Claim to Orig. U.S. Govt. Works.
Page 76
Not
Reported
in
N.E.2d
Page
4
Not Rcported 'ur N. E.2d, 1990 WL 187466 (Ohio App. 2 DisL)
(Cite as: Not Reported in N.E-2d, 1990 WL 187466 (Ohio App. 2 Di.ct.))
On the first day of trial, Leach filcd threc motions
in limine seeking to exclude from the jury the de-
Uefendan6Appellunt/Cros.s-Appellee Leach:r i1.s.signmen ts of Error
position testimony by Dr. Aftab Butt and two pages
of exihibits allegedly requested From but withheld
by Zinn. The trial court overruled the motions at an
A. Failure to Compel Discovery
in-charrtbers confuence conditioned on Zinn
providing defense counsel with the requested docu-
I-cach statcs in his Srat assignmcnt of crror:
ments by Gve o'clock that day.
In addition to other wimesses at trial, Zitm presentcd the deposition tcstimony of Aftab Butt, M.D.,
Michael DuVall, M.D., and Mark Main, L.P.T.
Leach objected to t}te testimony of Main arguing
that only a medical doctor could offer medical
causation testimony.
During closing arguments, Leach also objected to
TIIE TRIAL COURT ERRED TO TIiE PRESUDICE OF DEFENDANT-APPELLANT IN OVERRULING APPELLANT'S MOTION TO COMPEL
DISCOVERY, AND MOTIONS IN LIMINE, AND
IN ALLOWP.JG EVIDENCE BY MEDICAL EXPERTS AND OF MEDICAL EXPENSE UPON
THE SUBJECTS CONCERNING WIiICIi
I'LAINTIFFS-APPELLEES I-IAD NOT RESPONDED TO DISCO V ERY UPON.
Zimi s reference to Dr. Paulson's absence. The court
overruled the objection. Following deliberations,
*5 Discovery provides a mcans to narrow and
the jury awarded Zinn R400,W0 io compeasatory
sharpen the scope of the issues to be litigated
damages.
betwean parties to a dispute. Stare, ex rel. Daggev,
On March 20, 1989, Zinn tilod a motion secking
Ohio has adopted a liberal discovery policy which,
prejudgment interest alleging that Leach and Na-
subject to privilege, enables opposing parties to ob-
tionwide had not acted in good faith in attempting
tain all evidence that is material, rclevant and com-
v. Ge.r,vaman (1973). 34 Ohio St.2d 55. To this end,
to settle the case. Shortly thereafter, Leach 6ied a
petent notwithstanding its admissibility at trial. See,
motion for new trial alleging various trial irregular-
Civ.R. 26(B)(1). See, genemlly, 36 Ohio Jurispru-
ities, rnisconduct by Zinn in discovery matters and
dence 3d ([982), Discovery and Dcpositions, Sec-
an excessive damage award. Following a hearing,
tion 2S. Management of the discovery prncess lies
the court orciruled the motions finding that Zinn
sulely within the sound discretion of the trial court.
had failed to show that Leach did not make a good
See State, ei rel. Doggett, supra, at syllabus 1;
faith effort to setde the case and Leach had failud to
Sregawski v. Cleveland Aneslhe.via
cstablisb any irregularities warranting a new trial.
(1987). 37 Ohio App.3d 78: Smith v. Klien (1985),
Zinn then filed a motion pursuant to Civ.R. 15 for
leave to file a supplemental petition to recover insurance proceeds to satisfy his judgment against
Zinn. Shortly thereafter, Leach filed his appeal to
this court. The trial court tteferred ruling on Zinn's
supplemental petition pending the outcome of the
appeal. Zinn then filed his appeal and cross-appeal.
The mattcr is now before us on a variety of alleged
errors.
11
Group. Inc.
23 Ohio App.3d 146. Absent a palpabie abuse of
that discretion, a decision granting or denying a discovery request will not be disturbed by tlre revicwing cotut. State, ez ret. Daggett, .supra, at syllabus
1; Smith, supra. See, also, Aos.smmt v. Roanrnnn
(19751, 47 Ohio App.2d 103; Cri.s.s v. Kenl (C-A. 6,
1988), 876 F.2d 259.
The record before us indicates that before instituting an action, Zinn sent Nationwide on June 6,
1986, a packet of infonnation containing photographs, medieal reports and cconomie loss documents. Zinn sent Nationwide another packet of doc-
EXHIBIT G
tfJ 2008 Thomson/West. No Claim to Orig. U.S. (iovt. Works.
Page 77
Page S
Not Reported in N.E.2d
Not Reported in N.E.2d, 1990 WL 187466 (Ohio App. 2 Dist. )
(Cite asr Not Repuried in N.E.2d, i 99(I WL 187466 (Ohio App- 2 Dist.))
uments on March 6, 1987. This packet contained
mand fur production placed on Zinn the burden of
medical reports from Drs. Buu, Roberto and
providing all documents relevant to Leach's evalu-
DuVall, progress reports from Mark Main, L.P.T.,
ation and preparation of his defense. Yet, Lcach
and a wide variety of econutrtic loss documentation.
could have avoided this quandary by pursuing other
Further, on Septetnber 15, 1988, Nationwide's attor
avenues of discovery that would narrow and idenii-
ney acknowledged, by Ictter, receipt of Zintis in-
fy the issues involved, i.e., deposing Zinn and his
come rnx returns. Leach nevertheless argues Ihat
witnesses, or rnoving to compel production of docu-
Zinn refused to comply fully with his discovery re-
ments sooner than six weeks before trial. This he
quest. He alleges that the trial court's refusal to
did not do. If Leach was prejudiced by a lack of
cornpel discovery, issue a protective order, and sus-
diccovery, it was do more to his own conducl rhan
tain his motions in limine, was crror.
any obstruction of the thscovery process by his oppunent
Although attomeys have a duty to cooperate in the
counsel. Civ.R. 34 is subject to the constraintt of
We conclude that the trial court did not abuse its
discretion in overruling the motion to compel discovery, the protective ordcr, or the motions in
limine. Leach's first assignment of error is over-
C'iv.It. 26, which speaks of avoiding undue burden.
ruled.
discovery process, cf., Royal Indemnity Companv v.
J.C. Penny, et al ( 1986), 26 Ohio St.3d 31, tbey are
not required to act as investigamrs for opposing
Broad form discovery requests are not favored becausc they frequentty burden the opposing patty
B. Zinn's Closing Argument
with an obtigation to engage in an inquiry beyond
facts known to him. Thus, one party is compelled to
Leach states in his second assignment of error:
act as an investigator for the other, with the party
seeking discovery possibly "taking undue advantage of his adversary's industry or efforts." C iv.R.
16(A). This distorts the discovery proce.ss by relieving the movant for discovery of the burden to pursue diligently those avenues whieh will narrow the
issues and provide use6rl inrotmatian.
Here, Leach 9led a broad and categorical discovery
rcquest on March 30, 1987. No discovery order was
MISCONDUCT OF COUNSEL FOR
PLAINTIFFS-APPF.LLEES OCCURRED IN FL
NAL ARGUMENT TO THE JURY THAT DEFENDANT-APPELLANT DID NOT CALL DR.
PAULSON OF COLUMBUS, AS A WITNESS
AND DID NOT PRODUCF MEDICAL RECORDS, AND THE COURT ERRED IN OVERRULING THE OBJECTION OF COUNSEL FOR
DEFENDANTTO SUCH ARGUMENT.
sought until Lcach ntovcd to compel production on
January 23, 1989-atmost two years after the filing
Attomeys have broad latitude in fashioning closing
of the complaint or a mere six weeks before trial. In
arguments. However, that latimde has limits. It is
the two years between answering the complaint and
fundamental that a closing argument bc confined to
Gling his motion to compel, Leach did not depose
the questions at issue, the evidence presented, and
Zinn or any other witness and did not pursue any
the deductions and inferences to be reasonably
othcr avenues of discovery. Meanwhile, Zinn sup-
drawn from the evidence. Sce, Denv. Reud ( 1895).
plied Leach with many of the documents requcsted
52 Ohio St. 519: Cvfley v. Slrenk (1974), 39 Ohio
and provided authorization tn obtain such addition-
App.2d 156, at syllabu.s I; Cu.rnmano v. Pepsi-Cola
al medical records as Leach might want to have
BottRng Cn. ( 1967), 9 Ohio App.2d 105. A closing
from those who provided care to Zinn, who were
argument is improper if it argues facts outside the
known to Leach.
record, or makes assertions or attempts to draw inferences not supported by the evidence. Hertnan v.
*6 Leach's mliance on a broad and categorical de-
EXHIBIT G
0 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works.
Page 78
Not Rcponed in N.E.2d
Not Reponed iu N.F.2d, 1990 WL 187466 (Ohio App.2 Dist.)
Page 6
(Cite as: Not Etepot-tcd in N.E-2d, 1990 WL 197464 (Ohio App. 2 Dist.))
7'ep1iL ( 1925), 1 13 Ohio Si 164-
encc wa.c a singular occurrence which took placc
During rebu[tal argurnent, counsel for Zinn stated:
circumstances and the substantial evidence support-
MR. SMALLEY: Thatilc you, your Honor. Ladies
and gentlemen, the defendant has suggested what
judiced by the reference.
evidence we didn't produce. Let me suggest wc produced virtually all the cvidence in this case. The defendant wifl huve (vic) (he npporlunily ro look for
overruled.
during rcbuual argument. Given thc totality of thc
ing Zinn's claim, we cannot say that Leach was pre-
Leaeh's second assignment of error is, accordingly,
and get any prior medical records and had four
year.c to have plaintiff esamined hv lheir poctor,
Dr. Paul.von in Cblumbu.c. They didn't ca!! Dr.
Paul.son. Why nol7 They didn't prnduce any prior
rnedical records froni 1953 to the present time.
C. Medical Causation Testimony by a Physical
Therapist
Zinn states in his third assignmcnt of crror:
THE TR]AL COURT ERRED IN PERMITTING
THE TESTIMONY OF A PHYSICAL THERAP]ST Tl"IAT IN 'rHE OPIN)0N OF 111E PHYSIC-
MR. BEITZEL: Objection.
TIIE COURT: The objection is overruled. The
comment is permitted to stay. You may proceed.
(Emphasis added)
(Tr. 476-477). At no tirne during the trial did either
party refer to Dr. Paulson or present any report he
may have compiled for the defense.
AL THERAPIST, AND BASED ON
"REASONABLE DEGREE OF CERTAINTY;'
"fHAT THE ACCIDENT WAS THF DIRECT
AND PROXIMATE CAUSE "OF THE PROBLEMS FOR WIIICH (HE HAfI) BEEN TREATING MR. ZINN."
At the deposition of Mark Main, L.P.T., the follow-
Zinn's reference to Dr. Paulson's abscnce was im-
ing colloquy took place:
proper as it sought to draw an iuference not supportcd by evidence in the record. While Zinn correctly
Q. '*• I want to ask you to assume certain things.
states that counsel could refer to the opposing
party's failure iu call a modical cxpert wbo examined a plaintiff for the defense, see, Pennr v.
Tlrurrnnn (1972), 34 Ohio App.2d 190, it is equally
correct that the record must cstablish, as condition
precedent to suctt a reference, that the medical expert in fact exatnined lhe plaintiff for the defense.
ld. at 191. Therc was no such evidence in the record. Thus, it was improper for counsel to comment
on lhe absence of Dr. Paulson. Cf., Knnn.c v. Vnlorclri (1963), 2 Ohio App.2d 198.
-7 Ilowever, we eannot say that Zinn's comment
was prejudicial. Notwithstanding error in allowing
the reference, Leach fails to show prejudice; that is,
that but For the enor the outcome of the trial would,
in all probability, have bcen different. Cf., Smir/r e.
Assuming this accident, that subsequeut history,
and the history that I'm asking you to assume to be
vue, that the man had no neck and back problems
before this accident, then considering upon thosc
things your cxpertisc, experience and skill as a therapist and your fmdings and objective evidence of
on-going injury or injtuy to the date of this last exarnination in 1989, do you have an opinion, Mr.
Main, within a reasonable degree of certainty as to
the direct and proximate cause of the problems for
which you have becn treating Mr. Zinn.
MR. McDANIEL:Objcction.
THE WITNESS: Yes, I would say it's as a result of
the accident.
Fle.dier (19671. 12 Ohio St.2d 107. Here the refcr-
EXHIBIT G
0 7009 IhomsonlWest. No Claim to Orig. U.S. Govt. Works.
Page 79
Page 7
Not Reported in N.E.Zd
Not Reported in N.E.2d, 1990 WL 187466 (Ohio App. 2 Dist)
(Cite as: Not Reported in N.E.2d, 1990 WL 187466 (Ohio App. 2 Dist.))
MR. McDANIEL: **' Well, okay, I will try to
discuss thc subject. Numbcr I, I objcct to this witness, the physical therapist giving upinion evidence
on maGcal causation.
( Deposition of Mark Main, L.P.T., at 49-50).
R.C. 4755.40 pruvides, in pan:
(A) "Physical therapy" means the evaluation and
trcatment of a person by physical measures and the
use of therapeutic exercises and rehabilitative procedures, with or with out assistive devises, for the
purpose of preventing, correcting, or alleviating any
disability. *'' Physical therapy does not include
the diagnosis of a patient's disability the use of
Roentgen ray.c nr radium for diagnn.ctic or (hera-
caused by the coliision. Dr. Aftab Butt testiGcd that
the penxtanent scarring, numbness and tightness of
Zinn's scalp resulted from the accident ( Deposition
of Af)ab Butt, M.D., at 24). Dr. Michael DuVall
testilSed that Zinn's pcrmanent hearing and coordination problems resulted from the accident
(Deposilion of Michael DuVall, M.D., at 66). Dr.
Mark Roberto testified that many of Zinn's injuries
and later complaints resulted, either primarily or
secondarily, from the accident. Leach presented no
evidenee to contradict these conclusions.
We concluded that Leach was not prejudiced by the
medical causation testimony of Main. Absent such
a showing of prejudice, we will not disturb the decision of lhe trial cuun. See, ,Smith, supra. Leach's
third assigoment of error is overruled.
peutic purpo.se.c, or the use of electricityjor caulerizatinn orother.surgical purpo.ses. Yhy.sical therapy
D. Motion for a New Trial
includes physiotherapy.
(B) "Physical therapist" rneans a person who prac-
Leach's founh assignment of error states:
tices physical ther-apy as dcfines in this section, and
includes physiothcrapist. (Emphasis added)
In Burrevs v. Park Cycle & Marine, lnc. (Nov. 7,
1988), StarkApp.No. CA-7492, unreported, the
Court of Appeals for Stadc County concluded tbat
R.C. 4755.40 precludes physical therapists from
giving medical opinions. The Stark County Court of
Appeals found that a physical therapist could not
"wander outside the statute to give a medical opinion as to perrnanent injury t.]" Id. at 4.
THE TRIAL COURT ERRFD IN OVERRULING
MOTION OF DEFENDANT-API'ELLANT FOR
(A] NEW TRIAL.
Gmnting or denying a motion for a new trial lies
within the sound discretion of the trial court. See,
Ludlo+v'.r Fleir.v v. CGdherLvon (1829), 4 Ohio 5;
Beatrr• v. Harcher (1861), 13 Ohio St. 115; Steiner
c. Custer (1940), 137 Ohiu St. 448; Krcici v. 1/alak
(1986). 34 Ohio App.3d 1. Thus, whether the trial
court errod in disposing of such a motion is deteern-
'8 Though R.C. 4755.40 does not speci6ca(ty apply
ined under the traditional abuse of discretion stand-
to issues of witness competency, we agrce with the
ard; that is, was the coun's attitude unreasonahle,
view of Bnrress, cupra, that the statute prooludes
arbitraty or unconscionable. Steiner, supra. See,
physical therapists from giving diagnostic opinions
also, Ear.con v. Clevelnnd Acceptance Cnrp. (1969).
in testimony as well as in the form of patient advice
17 Ohio App2d 239.
and communication. Therefore, we must conclude
that the trial court errcd in admitting that testimony.
IIowevcr, the enor does not merit reversal unfess it
was prejudicial.
The record here indicates that sutbcient credible
evidence was presented beyond Main's tcstimony m
support the conclusion that Zinn's injuries were
EXHIBIT G
Leach filed a six branch motion for a new trial. The
grotmds offered in support of the motion included
Zinn's failure to comply with the discovery requests
(Civ.R. 59(A)(l)), misconduct by Zinn during discovery (Civ.R. 59(A)(2)), excessive damages
(Civ.R. 59(A)(4)), a judgment unsupported by the
wcight of the evidence (CivR. 59(A)(6)), and vari-
(D 2008 Thomson/Wcsl. No Claim to Orig. U.S. Govt. Works.
Page 80
Pxgc 8
Not Reported in N.F.2d
Not Reponed in N.fi.2d, 1990 WI_ 187466 (Ohio App. 2 Dist.)
(Cite as: Not Reported in N.E-2d, 1990 WL 187466 (Ohio App. 2 Dist.))
ous errors of law by Ihc trial cnurt conccming discovery rclated matters (Civ.R. 59(A)(9)). In the alternativc, Leach sought in branch six of his motiun
a seventy-five per cent remittitur of damages.
Upou the recovery of a Final judgment against any
ISaving revieweci the record, we conclude the biai
of action arose, the judgment creditor or the suc-
court did not abuse its discretion in overmling the
cutsor in inrere.st iv entitled fo have the insurmrce
motion forr a new trial- Nothing in the record sug-
money provided fOr in the insurance contract t**
f;mr, person, or corporation by any person *'' for
loss of damage on account of bodily injury or death
•*• if the defeadant in such action was insured
against loss or damages at the time when the rights
gests dtat the trial court's disprnition of this tnattcr
applied to the .cati.rjaction of the judgment. If the
or unconscionable-
judgment is not satiafied within thirty day-r after it
was uureasonable, arbitrary
Steiner, supra. As we noted above, any alleged dis-
is rendered, the judgment creditor * * * to reach
covery failures resulted as tnuch from Leach's con-
and apply the insurance money to the satisfaction
duct as from Zinn's alleged refusal to comply with
of the judgment, may file a.supplemental petition in
the discovery request. Further, givcn the extent of
the action in which said judgment wa.c renderer( in
Zinn's injuries, his loss of income, aud his future
which the in.curer is made a new purry defendant *
medical expenses, we cannot say the damage award
` * (Emphasis added)
was eacessive or the result of passion or prejudice.
R.C. 3929.06 provides a mcans to satisfy an exist-
See, Civ.R. 59(A)(4).
ing judgment against a tortfeasor from funds gener-
'9 We eoncluded that the uial cuurt did not abuse
its discretion in overruling Lcach's Civ.R. 59 ntotiort for a new trial or Iris alternative request for remittitur- Leach's fourth assignmcnt of error is, ac-
ated by his insurence contract with his own insurer.
corrlingly, overruled.
is properly brought by the judgment creditor by
Because the funds are held by the insurer, a separate legal proceeding is required to determine the
contract and its coveragc. That separwte procecding
way of a supplemental complaint.
Il.
When the trial court deferred a decision on the supplemental complaint
brought pursuaot to R.C
Appellant/Cros.c-Appellant Zinn'.r A.csignment ojEr-
3929.06, it did not stay any right of execution
rorx
arising fmm the judgment held by Zinn. Thatjudgment ran only to Leach, not to ihe insurer Nation-
A. Supplemental Pctition
wide. Therefore, the court was not required to order
a supersedeas bond in connection with its order of
postponement, which deferred a decision on the
The assignment of enor raised in Zinn's appeal
supplemental complaint until the merits of this ap-
states:
peal are decided. We see no error.
TIiF. TR]AI. COURT ERRFD BY STAYiNCi APPELLANT(S]-l'LAINTIFFS' ATTEMPTS TO EXFCUTE ON ITS JUDGMENT, VIA A SUPPLEMENTAL PETITION, WHEN NO SUPERSEDFAS BOND WAS FILED BY OR ON BFIiALF OF 'fHE APPFLLFFS-DEFENDANTS-
The assignment of crror will be overruled-
7.inn Bled a supplemental petition pursuant to R.C.
3929.06. This provision states, in part:
EXHIBIT G
B. Prejudgrnent lnterest
Zinn statcs in his cross-appeal:
THE LOWER COURT ERRED IN FAILING TO
GRANT PRF,-JUDGMENT INTEREST 'f0 THE
PLAINTIFF WFIFN DFFFNDANT-APPFLLANT
® 2008 ThomsorJWest. No Claim to Orig. IJ S. Govt Works.
Page 81
Not Reported in N.1?.2d
Not Reported in N.E1d, 1990 WL 187466 (Ohio App. 2 Dist)
(Cite as: Not Neported in N-E.2d, 1990 WL 197466 (Ohio App. 2 Diei.))
WAS DETERM)NED I3Y SUMMARY IUDGMGNT TO BE NEGLIGRNT, TtIE PLAINTIFF
IIAD TEIIRTF.GN 'I'IIOtJSAND FNE BUNDRED
DOLLARS ($13,500.00) IN MEDICAI_ EXPENSES WI'fH PERMANENT INJURIES AND
NO OFFER WAS MADE IN SETTLEMENT UNTIL ONL• I-IUNDREI) THOUSAND DOLLARS
($100,000.00)
WAS OFFERED TO TIIE
PLAINTIFF FIVE DAYS BEFORE TRIAL.
I'age 9
evaluated hi.c ri.ckc and potential liahility, (3) not
attempted to unnecessarily delav anv of tlte proceedings. and (4) made a good faith monetary settlement offer or responded in goodfaith tn an offer
from the other party. If a party has a good faith, objectively reasonable belief that he has no liability,
he necd not make a monetary setttement offer.
(Emphasis added)
See, also, Holman v. Grmrrhietv Hasp. d- .14et1. Clr.
R.C. 1343.03(C) provides;
(1987), 37 Ohio App.3d 151,
158. Whether the
movant bas met this burden is a factual issue. A tri(C) Interest on a judgment, decree, or order for the
al court's decision awarding or denying prejudg-
paytnent. of money rcnde.red in a civil action based
ment interest under R.C.
on tortious conduct and not settled by agreement of
disturbed if supported by competent evidence in the
the parties, shall be computed from the date the
record
cause of action accmed to the dateon which Lhe
(1985). 28 Ohio App.3d 14.
1343.03(C) will not be
Edger.snn r. Cleveland Fle. 11hunt. Cn.
ntoncy is paid, j upon motion of any party to the
action, the court determines at a hearing held sub-
We note that R.C. 1343.03(C) does not require a
sequent to the verdict or decision in the action that
showing of "bad faith" by the defendant. Rather, as
the party required to pay the money failed to make
observed in
a good faith effort to .settle the rare and that the
perbc, 1nr. (1984). 18 Ohio App.3d 39, 41:
Doilev
v. ;Vatinnwide
Demolition
party to whom the money is to he paid did rwt fail
m make a good faith effort to settle the cave.
'10 As a condition precedent to receiving prejudgment interest, the movant must make a two-part
showing. First, the movant must establish, ( I) a valid judgment or decree ordering the payment of
An "effort to settle" can be something less than
°good faith efTort" and still not be "bad faith effort:" The mere failure to do anything towards settlement '•• would be a failure to make a "good
faith effott to settle" but might well be short oC a
"bad faith e(fort" to settle.
inoney as compensation for tortious conduct, and
(2) a civil action not settled by the parties. Sce,
Vanrlerhoo(v. Generat rtcc. Ins. Group (1)87), 39
Ohio App.3d 91.
Thus, the party secking prejudgment interesL need
only establish a lack of good faith, not bad faith.
Whether a party has not acted in good Caith to settle
Sccond, the movant must then establish that the
a case is a ract-sensitive inquiry that must address
party subjeU to a civil judgment for tortious con-
the circumstances of each case as well as the relev-
duct failed to make a good faith effort to settle the
ant faetors set out in Kalain v. Smith, supra. De-
dispute. In Kalain v. 5'mitb (1986). 25 Ohio St.3d
terminations may vary according to the nature of
157, the Ohio Supreme Court provided severnl
the claim, the adversary role of the party concemed,
facton relevam to assessing whether a party failed
and the means available to the party to determine
to make a good faith effort to settle the dispute. The
his position in the litigation.
Court stated in the syllabus:
A party has not "Failed to make a good faith effort
to settle" under R.C. 1343.03(C)ifhe has (1) fuRy
cooperated in di.ccovery proceedings, (2) rationallv
EXHIBIT G
In this case the negiigence and liability of Leach
was clear from the date of the accident on March
25, 1985. Leach collided with Zinn's vehicle at an
intersection at which Zinn had the right-of-way.
© 2008Thornson/West, No Claim to Orig. U.S. Govt. Work.s.
Page 82
Not Reportcd inN.E.2d
Not Rcportcxl in N.E.2d, 1990 WL 187466 (Ohio App. 2 Dist.)
(Cile as: Not Reported in N-E-2d, 1990 WI. 187464 ( Ohio App. 2 Dist.))
Page 10
Zinn and his wife gavc full suttcments about the ac-
effort to obtain discovery, athcr than a latc motion
cidcnt. I_each claimed ttmt he could not rcmernber
to compel production of the documents. Yet, by
wltether he ignored a b-affic control device, though
that time Nationwide had thc information many
he did enter a plea of no contest tu that charge.
times over. In truth, thc demand for production was
etnployed less as a toul for discovery thnn as a
11I As early as April 8, 1985, two weeks after the
me-ans to finestall settletnent.
accident, Nationwide's adjuster concluded tbat the
company would owe damages. In Febmary 1987,
an adjuster conciuded that the company had a
policy limits exposure, but declined to settle because the company lacked "information" on the
claitn. 'rhe trial court t:ntered summary judgmeut
lirc Zinn on liability on August 15, 1988, and in
December 1981T, Zinns own insurcT paid him
$300,000 in underinsured coverage. Yet, Leech and
Nationwide made no offer to settle the case urrtil
March 1, 1989, a mere five days before trial and altnns-t four years from the date of the accident.
The record also reflects a failure of Leach and Nationwide to address the progress of the litigation.
Four difTerent attorneys were assigned, in succession, to represent Leach. Two of thuse were salaried
employees of Nationwidc. Two different adjusters
wcrc assigned. As the matter moved from person to
pcrson, past demands were renewed and evaluations repeated. Documents werc lost or nrisplaeed.
Communication broke down. No cffort was made to
reply to Zinn's demands for seulement, and no responsibility wa.c taken to move the matter to closFN•
urc.
Zinn made every cffort to settle the case by providing Leach and Nationwide extensive information
Leach and Nationwide hnally made an offer to
and documentation. Numerous reports were
settle the claim fox "policy limits" only five days
befom triat Yet, the information then bcfore thcm
conceming their risks and liability had been available to thcm or in their hands for months or years.
The record re[]ects no reason to support that delay.
Rather, it compels a conclusion that Leach and Nationwide wished to rctain their capital for as long as
provided from Zinn's physicians, and the substance
of their opinions conceming their diagnosis of
Zinn's injuries, their treatment of him, and his prognosis for recovery, did not change through the
course of the claim. Complete medical expense information was provided. 9uppurt for prospective income loss was also provided. This information substantiated Zinn's fau sepamte dernands for settle-
possible while causing Zion and his counsel to incur more expense and grcater inconvenience. _
ment. Leach and Nationwide ignored those de*12 R.C. 1343.03(C) has two purposes. It is inten-
mands.
ded to relieve the courts of the burden of litigating
Nationwide failed to utilize thc tools of discovery
cases that should be settled by requiring litigants to
availablc to it to Icam the additional information it
address their sculemcnt obligations realistically and
complaincd that it lacked. No deposition was conducted of Zinn or his wife. No depositions were
in good faith. It is atso intended to deny a recalcitmnt litigant the benefits he has realized in retaining
takcn of Zinn's physicians. No consistent effort was
funds long after he knows he must ultimately pay
made to use the releases obtained from Zinn to get
medical or oconornic data. These measures could
them over, and to give his adversary who has acted
have been used to narrow and focus the issues in-
on tbe funds he would have realized had they been
volved in Leach's potential liability. Instead, Nationwidc presented Zinn only with a broad fortn,
paid out when the obligation was clear.
categorical demand for production of documenls
which was so openended that it might never be satisficd. Leach and Nationwide made no additional
EXHIBIT G
in good faith compensation in the form of interest
No party is required to settle a claim against his
better judgment. Howevcr, R.C. 1343.03(C) penalizes a party who fails to act in good faith to bring
U 2008 Thomson/Wcst. No Claim to Orig. iJ.S. Govt. Works.
Page 83
Page 11
Not Rcported itn N.F..2d
Not Reported inN.F.:?d, 1990 WL 187466 (Ohio App. 2 Dist.)
(Cite as: Not Reported in N.E.2d, 199i1 Wl. 137466 (Ohio App. 2 Uist.))
the maue.r to closure. We conclude t}tal Lcach and 15, 1988.
Nmlonwidc failed to wake that good faith cffort. Ohio App.,1990.
"ihcir conducl did not meet the obligations of co- Zinn v. Leach
operation and rational evaluation of risks and po- Not Rcported in N.F,.2d, 1990 WL 187466 (Ohio
tcn(ial liabilily sct out in Katain v. Smirh, supra.
App. 2 Dist.)
The record is clear that Ihey purposely delaycd the
procccdings through unproductive discovcry calcu- END OF DOCUMENT
lated to protect them from their settlement obligations. llieir last-minute offer to settle thc case on
information known to them for umnths or years
lacked good faith. Lastly, Leach and Nationwidc
cannnt point to an objectively reasonable belicf that
they lacked liability, and they could have had no
such belicf from the time of the summary judgment
on liability in August, 1988.
Wc find that the trial court acted unreasonably in
denying Zinn's motion for prejudgment interest. We
hold ihat the triat court thus abused its discretion
and crred thereby to the prejudice of Zinn.
111
Canclusion
Tbe judgment of the trial court will be af6rmed on
all assignments of error of Appellant and CrossAppellant, exccpt as to Cross-Appellant's assign"
atent conceming prcjudgment interest, on which the
judgment af the trial court will be reversed. The
mattcr will he remanded to the trial court for entry
of a judgment for prejudgment interest as provided
by R.C. 1343.03(C) in favor of Appellee/
Cross-Appellant Zinn against Appellant Leach.
W OL F F, P.J., and 13 R(1G AN, J. , concur.
FN* Leach and his wife advised the court
by motion and affidavit 6led March 27,
1989, that until early 1989 they had no
contact with any attorney providaA them
by their insurer, Nationwide, and that they
were ttnaware of the sumrnary judgment on
liability rendered against them on August
EXHIBIT G
92008 ITomson/Wcst, NoClaim W orig. U.S. Govt. Works.
Page 84
V\Te_q1aK
Not Rcpurted in N.E:Ld
Page I
Not Reported in N.E.2d, 2003 WL 22390095 (Ohio App. 10 Dist.), 2003 -Ohio- 5582
(('ite as: Not Reported in N.E.2d, 2003 WL 22390095 ( Ohio App. 10 Dist))
GI
Surte ex reL Hmnilityl{onse v. Indtutrial Cum'n of
Ohio
Ohio App. 10 Dist.,2003.
CHECK 0I110 SUPREME COURT RULES FOR
REPORTING OF OPINIONS AND WEIGHT OF
LEGAL AULIIORITY.
Court of Appeals of Ohio;Centh District, Franklin
County.
STATE ex rel. IIUMILI7YIIOUSE, Rclator,
v.
die tiolland, Respondents.
No. 03AP-t.
Decided Oct. 21, 2003.
Employer sought writ of mandamus ordczing lndustrial Cuinmission to vacate its order awarding perdisability ( PTD) compensation to
72-year-old workers' componsation claimant Magistrate issued'a decision, and cmployer filed objections. The Court of Appeals, Sadlcr, I., held that:
(1) rcport of claimant's treating physician constitutcd "somc evidence" of claimant's physical inability to engage in suslained, remunerauve employment;
( 2) valuation of tton-medical/vocational
factors was not necessary, as claimant was medically unable to perform any sustained, remunerative
employmnnt; and (3) magistratc was not required to
address employer's contention that claimant's advanced age was sole cause of her inability to work.
Objeetions overruled; writ of mandamus denied.
West Ilcadnotes
111 Workers' Compensation 413 4D^1639
413 Workers' Compensation
413X V I Proceedings to Secure Compensation
41 } X V l('.J ) Weight and Suffrciency of Fvidcnce
EXHIBIT G
pcnsation
413k 1615 Compensatiort for Tntal Disability in General
413k1639 k. Permanent Disability.
Most Cited Cascs
Report of workeri compensation claimant's treating
physician, which conlained both objective and subjective physical findings and an opinion that, medically, claimant was permanently and totally dis,
abled, constituted "some evidenec" of claimant's
pbysical inability m engage in sustained, remunerative employment, as was required to award per-
INDUSTRIAL COMMISSION OF OIIIO and Gol-
mancnt total
413XV1(N)9 Amount and Period of Com-
manent total disability ( PTD) compensation, even
though physician had opined just three montlrs
carlier that claimant could remm to work within restrictions outlined by occupatiotul therapist.
121 Workers' Compensation 413 C^847
413 Workers Compensation
4131X Amount and Period of Compensation
4131X(B) Compensation for Disability
4137X(II)2 Total Incapacity
413k847 k. Incapacity for Work or
Employment Generally. Most C ited Cases
Fvaluation of non-medical/vocational factors was
not necessary to award permanent total disability
(PTD) compensation to workers' compensation
claimant who was medically unable to perform any
sustained, remunerative employment, even though
this inability wvc occasioned by only one allowed
condition.
131 Workers' Compensation 413 C^1756
413 Workers'Compensation
413XVI Proceedings to Sccure Compensation
413XVI(P) Hearing orTrial
413XV1(P)6 Findings of Fact and Conclusions of Law by Board, Commission, or Court
413k 1751 Particular Facts and Conclusions
413k1756 k. Famings and Impair-
0 2M8 Thomson/Wcst. No Claim to Orig. U.S. Govt. Works.
Page 85
Page 2
Not Rcported in N.1:.2d
Not Reported in N.E.2d, 2003 WL 22390095 (Ohio App. 10 Dist.), 2003 -Ohto- S5g2
(Cite as: Not Reported in N.JE.2d, 2003 WL 22390095 (Ohio App- 10 Dist))
ment of Eanting Capacity. Most Citcd Cascs
Magistrate was not rcquired to address employcr's
contention, in opposing award of permanent tntal
disability (PTD) compensation, that 72-year-old
workers' compensation claimanis advanced age
was sole cause of her inability to work, where uothing in the record demonstrated that cla(mant's age
was the sole cause or primary obsrxle serving as a
significant impe(iment to rcemployment.
trate recommended dtat thc roquestcd writ of ntantlamus be denied.
[1]{1 4) Relator filed objections to the magistrate's
decision. Therein, rclator argues that the magistrate
erred in finding that the January 21, 2002 repon of
Holland's treating physician, Dr Williams, constimted "some evidence" of Holland's physical inability to engage in sustained, remunerative employment. Relator argues that, because Dr. Williams
Hanna, Campbell & Powell, LLP, and Lori A.
had opined just three months earlier, in a report
Fricke, for relator.
Jim Petro, A0.orney General, and Janine Ifancock
dated September 14, 2001, that Holland could re-
Jones, for respondent Jndustrial Commission of
O}),
Law Offices of Dennis E. Ujczn, and Dennis E.
occupational
Ujczo, for respondent Goldic Holland.
sion's order. We disagree.
SADLER, J.
*1 11 I) Relator, Humility7louse, commenced this
original action requesting a writ of mandamus ordering respondent, Industrial Commission of Ohio
("commission"), to vacate its order awarding perrnanent total disability ("PTD") compensation to respondent, Goldie Holland ("ITolland").
turn to work within the restrictions oullined by the
therapist, the January 2002 report
should not have been relied upon and does not constitute "some evidcnce" supporting the contmis-
(15) The January 2002 rcport cuntains both objective and subjective physical findings and an opinion
that, medically, Holland is petmanently and totally
disabled. Therefore, it constitutes "some evidence"
supporting the commissiun's order. That the same
physician opined differently several months earlier
goes ottly to the weight of the evidence. The com-
{12{ Pursuant to Civ.R. 53(C), and Loc.R. 12(M)
tnission ascribed sufHcient weight to the January
of the Tenth District Court of Appeals, this matter
was referred to a magistrate wbo issued a decision
2002 report to rely un it in ordcring PTD compensation, and this was within its discretion. This objec-
including findings of fact and conclusions of law.
tion is overruled.
(Attached as Appendix A.) In her decision, the magistrate found that there was "some evidcucc' to
support the cotnmission's detcrmination tbat Holland was incapable of performing sastained, remunerative employment. She detcrmined that though
the evidence was susceptible to interpretation wi(h
respect to whether or not Holland was capable of
sedentary or light work, the commission's interpretation was within its discretion.
(j 3) The magistrate also found that because the
evidence established that medical factors alone
render Holland incapable of sustained, remunerative employment, the commission was not required
to evaluate non-medical factors pursuant to Slare e.r
rel. Slephen.ron i. Jnnca. Comm. (1987), 31 Ohio
St.3d 167. 509 q.E.2d 946. Tberefore, the magis-
EXHIBIT G
[2](1 b) Relator also argues that the magistrate
erred when she concludcd that the commission was
not required to discuss non-medical factors pursuant to Srephen.ron, supra, and that the commission
was correct in relying on the case of Srole e.x rel.
Galion Afrg. Div. Dresser Jndnarrie.a, Jnc. v. Hargood (1991). 60 Ohio St.3d 38, 573 >I.E.2d 60 in
failing to do so. Aa evaluation of the non-medical/vocational factors is not necessary when the
claimant is medically unable to perform any sustained, remunerative employment, even if this inability is occasioned by only one allowed condition.
Store e.r rel. Speelrnan v. lnrLrr. Cnnun. (1992), 73
Ohio App.3d 757, 598 N.F,.2d 192. Accordingly,
this objection is overmled.
© 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works.
Page 86
Not Reported in N.E.2d
Not Reported in N.E.2d, 2W3 WI. 22390095 (Ohio App. I0 Dist.), 2003 -0hiu5592
(Cite as: Not Reported in N.F..2d, 2003 WL 22390095 (Ohio App. 10 Dist))
Page 3
Findings ofFacr
*2 [3]11 7) Finally, relator argucs tbal the ntagistrate erred in not addressing relator's contention that
Holland's advanced age was the sole cause of her
inability to work. Finding nothing in the record to
demonstrate that Holland's age was the sole cause
or primary obstacle serving as a siguificant impediment to reemployment, we find no error in the magistrate's failure to specifically address this argn-
(, 10) 1. In March 2001, Guldie llolland
("claimant") was lifting a resident of
ilumilityAouse from the floor when she sustaincd
an injury to her back. licr workcrs' cutnpcnsatiori
claim was allowed for a c(impression fracture of the
lumbar spine at L3. Claimant was 72 years otd on
the date of injury.
ment.
{¶ R) Following an indepe:ndent review of this matter, wc find that the tnagistrate has properly determined the pertinent facts and applicd the appropriatc
law. Therefore, we ovetrule relator's objections and
adopt the magistrate's decision as our own, including the Ilndings of fact and conclusions of law contained therein. in accordance with the magistrates
decision, we deny the requested writ of mandamus.
Objections overruled; writ of mandamus dettied.
LAZARUS and W A'iSON, JJ., concur.
1' 11) 2. In April 2001, K. Brian Williams, D.O.,
an orthopedic surgeon, reported as follows:
(T 12)"Thcee is apparently a question as to the relationship of Mrs. Ilolland's fracture and her work related activiries. There is no history to suggest any
other relationship and the activity of record is certainly consistent and is felt to bc the cause of her
compression Fracmre of L3 vertebral body."
tJ 13) 3. On September 6, 2001, claimant was
evaluated in regard to her functional capacity at
Keystone Rehabiliiatiun Systems, at which time she
APPENDIX A
felt that she could perform many of the tasks that
she used to campiete prior to her injury. 'fhe occu-
MAGISTRATE'S DECISION
pationat thetapist opined that claimant retained the
capacity to carry ten pounds occasionally, sit frequently ( although she had to change her position as
Rendcred on May 29, 2003
pain in her low back began to increase), drive a car
for transportation to appointments, etc., perform
fine motor skills and fingering frequently, stoopt
IN MANDAMUS
bend occasionally, and kneel one to two times per
day. ClaimanC was able to perform a variety of lim-
fj 9; In this original action, relator, IIM Health
ited lifting and reaching activities. The therapist
Services, known as 1lumilityHouse, asks this court
made the following recommendations:
to issue a writ of mandamus compelling respondent
Industrial Commission of Ohio ("commission") to
vacate its order awarding compensation for permanent total disability ("PTD") to respondent Goldie
Holland and to deny the requestcd compensation or,
in the alternative, to give further consideration to
the PTD application under Slure es rel. Srephen.son
v. /ndu.s. Cornrn. (1937). 31 Ohio St )d 167. 509
N.E.2d 946.
•3 (J 141°Sascd upon the results of this evatuation,
Mrs. Holland should wurk at a position in the
Sedentary level of Physical Demands, (I to 10 N
Occasinnally, Negligible weight on a Frequent or
Coastant basis.) She did have greater strength in the
lif) that used her leg strength, being in the Light
level when lifting 15 inches above floor level (1I to
?0M Occasionally, bnt no Frcqncnt lifts from this
level.) She sbould be given the opportunity to
change her postures every 30 minutes, as she can be
EXH IBIT G
Q 200R Tlromstnr/Wcst. No Claim to Orig. U.S. Govt. Works.
Page 87
Not Rcponcd in N.L-.2d
Pagc: 4
Not Reportu] in N.F..2d, 2003 WL 22390095 (Ohio App. 10 Dist.), 2003 -0hio- 5S82
(Cite as: Not Reported in N.E.2d, 2003 WL 22}90095 (Ohio App. 10 Dist.))
on her fecl or sit 30 minute intcrvals, and lben pain
ated with simple activities of daily living.
becomes intense if she does not change her pusture.
She is limited to 10 minute intervals of Standing
ll 20) "X-rays taken 5/21/01 showed improved
stationary. She would benefit from kecping taeks
density through the L3 venebral body with appczr-
within Near Reach (within 16" of her body) to min-
ance of a stable hcaling fracture. IIrace was contin-
imize discomforl from reaching and allow her to
ued at that point as wcll. Therapy was initiated at
use her hands on a Frequent basis. She could usc
that time at Rebab Network with slow progression
Hend/Stoop or Rarely a 1/2 Kneel to perfonn low
related to the injury itself, patient's age and also
symptums. Thcrapy was progresscd in light of the
or floor level tasks.`
apparently hcaled fracture, though the patient con-
{¶ 15) The occupational therapist furYher opincd
tinued tn complain of low back pain and restrictions
tltat, if claimant could be taken back at a modified
duty, lifting more than ten pounds occasionally and
gtven the opportunity ut sit occasionally, while also
following all the other reconrmendalions, claimant
"may be able to participate in a Gradual Return to
of activities inctuding difficulty even sitting because of associated back pain.
*4 11 21) 'Functional capacity evaluation was recommended and obtained, repnrt dated 916/01. Significant impairments were listed here as weil as
Work progrnm, bcgituting at 4 hours per day and
slowly increas[ing] to a full 8 haurs pcr day as her
mther prohibited outline of recommendations for
tolermrce improves "
limitatinns.
t'♦I 161 4. On September 14, 2001, claimant's orthopedist, Dr. Williams, released her to return tu work
within the restrictions outlined in the occupational
The patient was hurting a lot in her low back sub-
11 22) "'fhe latest follow up date was 12/12/01.
jectively at that time with actually an increased intensity. Clinically observed was a slow, careful
evaluntion.
gait, pain on palpation of the lurnbosacral and sac{l 17) 5. In December 2001, claimant visited Dr.
roiliae areas, increased lwnbar tone with some ten-
Williams, rcpoRing increased intensity of pain. On
demess, and signi6cant limitation of back mobility.
January 21, 2002, Dr. Williams reported, in part:
)9 1 R)" •`* Mrs. Holland's injury of 3/23/0l is recalled lifting a resident from the floor at
f7umilityNouse. * * * X-rays of 3/26/01, Medical
Imagining Network, showed a eompression fracture
{1 23) "Based upon this evaluation and all the information previously outlined, it is my feeling that
Mrs. Holland is permanently and totally disabled
due to allowed conditions which are felt to be directly related to Ihe injury of record."
of the L3 vertebral body. Bone scan dated 4/9/01
showed increased activity of L3 vertebra, corresponding to compression defonnity seen on plain
11 24) 6. In February 2002, claimant filed a PTD
application stating among other things tJtat she was
bom in May 1929 and 6nishe(i eight years of
films.
school in West Virginia, leaving school in about
(1 19) "The patient was subsequently referted to
1945 to wnrk to help support her family. She wa.c
Al3l Orthotics fur placement of a back brace, A
certified as a nurses aide in 1990.
Freeman corset was fit 4/19/01. Patient waa inslructed to continue to wear this and was follow up on a
.serial basis with follow up X-rays of the tumbar
spine to assess the status of the vericbral fracmre.
The brace alleviated some of the patient's discomfort, however, not all of it, which was even associ-
EXHIBIT G
{125) 7. Additional medical and vncational reports
were submitted.
(9 26) 8. In September 2002, a hearing was held
before a staff hearing oHicer ("SHO"), who found
the January 2001 report of Dr. Williarns to be per-
<> 2008'fhomson/West. No Claim to Orig. U.S. Govt. Works.
Page 88
Not Reported in N.F..2d
Not Reported in N.E.2d, 2003 W L 22390095 (Ohio App. 10 Dist), ?003 -Ohio- 5582
Pagc 5
(Cite as: Not Reported in N-E.2d, 2003 WI. 2239669_S (Ohio App. 10 Dist.))
suasive. Thc SHO found that claimant was medically unable to perfonn any sustained remuncratlvc
rcnder the claimant any morc. or less ... able to
work.(')
employment, based solely on the industrial injury
and allowed condition in the claim. Accordirrgly,
the S{10 did not procct.^d to an analysis of nonmed
'5 (133) "The paymcnt of petmanent and total disability bene6Ls is to commeucc on 1/21/2002, based
on the ctaimant's request th-at dte permanent and
ical factors:
total disability bene6ts commence on sai(i date, and
{¶ 27)"It is the finding of the Slaff Hearing Offrcer
that this claim has been allowed for: CDMPRF.SSION FRACTURF. L3.
(T.1 281 "ARar full consideration of the issue it is the
the opinion of Dr. Williams, cited above.
(l 34} "it is hrrther ordered that the above award
be allocated as follows: 100% ofthc award is to be
paid under Claim Number 01-832131.
order of the Staff Hearing Oflicer that the Applicalion 61et1 01/31/2002, for Pennanent andTutal Disability Compensation,
is GRANTED 'rO TH6
{135} "rhe allocatimt of this award is predicated
upon thc said opinion of Dr. Wikliams who attributes all of claimant's inability to work soleiy to the
FOLLOWING EXTENT.
injury and allowed condition in this claim. Said
{¶ 29) "Parm:utent and mtal disability compensa-
opinion is found persuasive.
tion is heteby awardcd from 1/21/2002 `' *.
1130) "This Staff Hearing Officer finds that it is
{l 36) "All relevant evidence has been reviewed,
and considered, in rendcring
this de-
not nccessary to consider the claimant's disability
cision."(Emphasis sic.)
factors since [he claimanl has reached rnaximttm
medical improvement and is medically unable to
perform any sustained remunerative cmployment
{J 37) 9. The employees request Cor reconsideration was denied.
based upon the 1/21/2002 opinion by Dr. Williams,
D.O., an orthopedic surgeon.
1131) "This Hearing Officer relies upon the case
of Sta1c ex rc1L Calinn Mfg. Uiv., Dresser bulusIries, Inc. v. Hat^goot! ( 1991), 60 Ohio St.3d 38.
573 :V.F.'.d 60, wherein the coutt stated as follows:
{¶ 32) °[')A claimant who has mulliple allowed
conditions is not required to shaw that each condition standing alone, is work-prohibitive ... While
permanent total disability benefits may never be
denied sofely on the basis of medical evidence
without consideration of Stephenson factors contained in the record, thcre are some situations
where an award of such benefits may properly be
based on medical factors alone. It would serve no
practical purpose for the commission to consider
non-medical Cactors in extreme situalions wbcre
medical factors alone preciude sustained ¢munerative employment, since non-medical factors will not
EXHIBIT G
Conclusions ojLaw
{l 38) The relevant inquiry in a PTD determination
by the commission is whether the injurerl worker is
capable of pcrforming any sustained remunerafive
cntployment. Stale ex rel. DornJancir
v. /rrrhrs.
Comm. ( 1994), 69 Ohio St.3d 693, 695, 635 N.F.2d
372;Srme er rel. ;Na.r.s r. Luhec Co.ron. (1996), 75
Ohio St.3d 414, 662 N.E.2d 364. In mandamus, the
issue before the court is whether the commission's
order was supported by "some evidence" in the rccnrd and the commission provided an adequate explanation of iLs tationale. Srure ex rel, A'oll r. Indrer.
Comm. (1991), 57 Ohio St.3(1203, 567 N.F.'d 245.
An order supported by "some evidence" must be
upheld regardless of whether the record includes
other evidence, greater in quantity and/or quality,
that supports the contrary decision. S7ute c.r rrcl.
I'asr cCS'.T. Exnartion Co. t 1996). 74 Ohio St.3d
373, 376, 658 N.E.2d 1055.
d 2008 Thomson/West. No Claim ut Orig. U.S. Govt. Work.s.
Page 89
Not Rcpurted in N.E.2d
Not Reported in N.F.2d, 2003 WL 2239tyJ95 (Ohio App- 10 Dist.), 2003 -Ohio- 5582
Pagc 6
(Cite as: Not Reported in N.£.2d, 2003 WL 22390095 (Ohio App. 10 Disr-))
(¶ 39} In cases whcre the injured worker rctains a
functional capacity).
residual fuuctiotmllmcdical capacity for work activities, the commissiun rnust consider not only the
claimant:s medical restrictions but must also consider nonmcdical factors such as agc, education and
work hislory.Srephen,son,- -Stare ex rel. Gav Y.
'6 11 421 The entployer also argues that all thc
cvideuce indicates that thc claimant was and is capable of sedentary if not light work. Again, the rnagistrate disagrees. The evidence was susceptible to
V1ihm ( 1994). 68 Ohio St.3d 315, 626 N.E.2d 666.
interpretation, and the commission's interpretation
Ilowever, an explorntion of thc nonmedical/voca-
was within its discretion. It is true that, as of
tinnal factors is not necessary when the claimant is
September 2001, Dr. Williams opined that claimant
medically unable tq perform any sustained remu-
was able to perfonn limited work within ttte restric-
nerative employment. E.g., Stmre ex reL Golinn
tions oudined by the occupational therapist.
Mfg. Div. Dres.cer lndreNrie.C Jnc. r. Hargond
(1991), 60 Ohio St.3d 38. 573 N.G.2d 60'srare ex
rel. Snrelmnn v. btdn.s. Comne. ( 1992). 73 Ohio
App.?d 757, 598 N. E.2d 192.
tlowever, when Dr. Williarns cxamined the
claimant in December 2001, she reported that her
pain was morc intense. In his report of January
2002, Dr. Williams descrilted claimant's slow, careful gait, and pain and (enderncss on examination.
{¶ 401 Here, the commission found that claimant
was medically unable to perform any sustained remuneretive employment due to the industrial injury,
and the issue before this court is a narrow onewhether that finding was supported by "some evidence" in thu record. The magistrate cuneludes that
He also found significant limitation of back mobil-
it was- The report on which the commission relied,
the January 2001 report of Dr. Williams, constituted "some evidence" to support the commissions
decision. Accordingly, a writ of mandamus is not
opinion but simply a revision of his opinion bascd
warranted.
er the patient's increased symptoms were sufficient
1141) The employer argues the decision in Galion
opinion was "some evidence" on which the com-
Mfg. cited by the commission was inapplicable. The
mission could choose to rely. Thc magistrate finds
magistrate disagrees, concluding that the principle
no basis for removing the report from evidentiary
for which the decision was cited has application
consideration as a matter of law. Dr. Williams fo-
beyond those situations in which the injured worker
cused snlely on the industrial injury and the al-
ity. Dr. Williatns explained why he believed a t that
timc that claimant was unahlc to work.
{j 43} Dr. Williams' opinion of January 2002 does
not show a contradiction of his September 2001
on a change in the patient's presentation during a
subsequent examination. Although reasonable persons could disagree with Dr. Williams as to whethto remove her from the workforce, his medical
has multiple allowed conditions. Where a claimant
lowed fracmre at L3: there is no mention of any
is medically unable to perform sustained remuner-
other condition causing disability. The doctoi s gen-
ative employment, an evaluation of the vncational
ernl rcfcrence to "allowed conditions" in the last
ability is pointless, regardless of whether there is
sentence does not outweigh his clear focus
one allowed condition or ten- A consideration of the
throughout the report on a single injurious event
claimant's vrxational facmrs is prcmisod on the ex-
and a single condition of fmctured vertebra at L3.
istence of a residual medicaUfunctional capacity for
In sum, the commission as the finder of fact was
sustained remunerativc cmployment. See, gener-
within its discretion to accept Dr. Williams' opinion
ally, Stephen.son; Speelman,supra; see, also, Stare
in awarding PTD cumpensation.
ex re1. Cnrnna v. Indue Comm. (1998). 81 Ohio
St.3d 587, 589, 692 N.E.2d 1017 (indicating that
the nonmedical analysis depends on the claimant's
EXHIBIT G
(1 44) The employer has not met its burden of
proving en abuse of discretion by the commission.
Accordingly, the magistrate recommends that the
® 2008 Thomson/West. No Claim to Orig. U.S. Govt. Warks.
Page 90
Nol Reported in N.E.2d
Nol Relwrtcd icr N E.2d, 2{H)3 Wt. 22390095 (Ohio App. 10 DisL). 2003 -Ohio 5582
(Cite as: Not Reported in N.E_2d, 2003 WL 22390095 (Ohio App. 10 Dist))
Page 7
court deay thc rroqurated writ.
Ohio App. 10 Dist.,2003
State cx rel. Humility Ilouse v. Industrial Cotn'n of
Ohiu
Not Reporled iu N.E.2d 2003 WL 22390095 (Ohio
App. 10 Dist.), 2003 -Ohio- 5582
END OF DOCUMENT
EXHIBIT G
(0 2008 fhomsonlWcst. No Claim to Orig. O.S. Govt. Works.
Page 91
'I'he IndusLri:d Cornniission of Ohio
RECORI) OF PROCEEDINGS
Claims Heard: 04-888455
04-888455
LT-ACC-SI-COV
PCN: 2081021 Laura Horvat
Claim Number:
LAURA HORVAT
382 STABLE DR
LAGRANGE OH 44050-9654
Risk Number:
Date of Injury: 10/15/2004
20005329-0
IC-12 Notice Of Appeal filed by Employer on 06130/2008.
Issue: 1) Scheduled Loss/Loss Of Use - RIGHT HAND
Pursuant to the authority of the Industrial Commission under Ohio Revised
Code 4123.511(E), it is ordered that the Appeal filed 06/30/2008 by the
Employer from the order issued 06/13/2008 by the Staff Hearing Officer be
refused and that copies of this order be mailed to all interested parties.
ANY PARTY MAY APPEAL AN ORDER OF THE COMMISSION, OTHER THAN A DECISION AS
TO EXTENT OF DISABILITY, TO THE COURT OF COMMON PLEAS WITHIN 60 DAYS AFTER
RECEIPT OF THE ORDER, SUBJECT TO THE LIMITATIONS CONTAINED IN OHIO REVISED
CODE 4123.512.
Date Reviewed: 07/02/2008
Typed By: tjc
John L. Havener
Date Typed:
Staff Hearing Officer
07/02/2008
Findings Mailed: 07/05/2008
Electronically signed by
John L.Iiavener
The parties and representatives listed below have been sent this record of
proceedings. If you are not an authorized representative of either the
injured worker or employer, please notify the Industrial Commission.
04-888455
Laura Horvat
382 Stable Dr
Lagrange OH 4050-9654
ID No: 14465-90
Thomas C Mays
1370 Ontario St Ste 1520
Cleveland OH 44113-1708
Risk No: 20005329-0
ID No: 1825-80
Benefits 1 Group
25001 Emery Rd Ste 340
Cleveland OH 44128-5627
Cambridge Home Health Care, Inc/Pri
4085 Embassy Pkwy
Akron OH 44333-1781
EXHIBIT H
Page 92
SHREFUSE
Page
1
tjc/tjc
Thc Industrial Conunission of Ol,io
RI:CORD OF PROCEEDINGS
Claim Number: 04-888455
ID No: 2D785-91
Willacy Lo Presti & Marcovy
1468 W 9th St Ste 700
Cleveland OH 44113-1220
BWC, LAW DIRECTOR
NOTE: INJURED WORKERS, EMPLOYERS, AND THEIR AUTHORIZED REPRESENTATIVES MAY
REVIEW THEIR ACTIVE CLAIMS INFORMATION THROUGH THE INDUSTRIAL COMMISSION WEB
SITE AT www.ohioic.com. ONCE ON THEHOME PAGE OF THE WEB SITE, PLEASE CLICK
I.C.O.N. AND FOLLOW THE INSTRUCTIONS FOR OBTAINING A PASSWDRD. ONCE YOU HAVE
OBTAINED A PASSWORD, YOU SHOULD BE ABLE TO ACCESS YOUR ACTIVE CLAIM(S).
EXHIBIT H
SHREFUSE
Page
,,,,,,. .t,,,,,,>
and Sc^]cc Pn,vide[
2
tjc/tjc
Page 93
M[CIEA.EL W. KETI7i, M.t). ssao Mrtroualta Ortre
Oevebud t1H 14109-1998
MebuNenlf>, MeAlnt Csnnr
p.p"bNeet of OriboPo*mo O1vo R16j TT6.q9p
Hrnd, Bhenldv A Upprr Cttr®17 FAX (216) TTB {690
Coprpkx Paralyds Dhneden
Laura Horvat
915105
Unit #5266472
SSN_CC: Follow-up righf wtin
XR: I roviewed het bono scaa and oa the tight side it shows evidence of increased lplalce hl the tadlocarpal joint
eroa. This repcavrnta objective evidatce that the pa}n emminadng &om this erca Is 6om bones and joints. This is
strong evidence that she would not recuver itam any tneatment onless it is directed tnward resotving her inswbility.
R'hat is nut known at thi.s stage ero which caltilages atefaces ara twethl for reconstruction wd wbw opvone we will
use to recommtmd a specifie surgical procedare.
I believe that the next stage in her managalnent Is consideration for surgery. Spectfiwliy I racommend an intucmpet
at9lTodests or reseetton of bones lf our etlteria 1s nor met tor succeasflil carVlege stvtacc to bcncfit from, for iavtanw
an STT ftlsion or fourcorner erHuodesis and scqhoid reseeainn, radiooacpel pimeimal row arthtodosis or proxhnal
raw oarpcctoany. She stiU has 30 degfeos of ftexion-exfension. I believe that the wrist arthrodesis is not neussary at
thLs stegc. tt couid be resuved for a seivago proceduro. In cifhor caee a faihac of the rnon ccroservativc opeaation
or the necessity of a total wrist arthrodesis would 117cely remove her fi+om ths beavy tabor wark foree.
I have indicatal to her that we will aubmit a C9 fat intereetpat anbrodests or proximal tow cacpeetomy dependmg
upon the sltrgical findtng9, t wflt await adecision ffom her selLInsunxi uoaywny bcfurc ptt>Va.71inK wItb Ircn4nmt.
The patient has retained an attnmey at this stagq,'ILotnas Mays to tepraseat hef In all negotiations with her
ernployer. MWKeith 1rtDR:a
cc: Linda Pencynski, Cambridge f{ome tteahh Cate (C9)
EXHIBIT I
Page 94
FAX 'J(,, ;30 438 0597 P. 0DG
'- AU5-T'u[i (i^:: 0 :4'r+1 B41'C
Rex Dinsmore, D.Q.
P.O. Box 879
Brunswick, OH 44212
(330) 225-2554
I
Permanent Pattial Impairment Evaluation
October 23, 2005
Laura Horvat
3880 Grafton Rd_
Brunswick, OH 44212
Claim # 04-888455 SI
DATE OF INJURY: '
DATE OF EXAMINATION:
DATE OF REPORT:
` DATE OP BIRTH:
10/15/04
10/20/05
10/23/05
12/30/52
ALLOWED CONDITION(S): 842.00 SPRAIN Of WRIST NOS RIGHT; 842,10
SPRAIN OF HAND NOS RIGHT HAND
HISTqRY: The patient is a 52 year old female who states that she was
Injured while employed as a Caregiver for Cambridge Home Health Care,
Inc_ The Injuly occurred as the claimantwas lifting a patient and she
developed pain In her right hand and wrist. She was initialiyevaluated af
Medina General Hospital where x-rays and a bone scan revealed no
fractures or dislocations. She was diagnosed with a sprain of the right wrist
and hand, treated conservatively and released. She continued to
experience pain and was evaluated by Dr. Michael Keith, MD. A bone
scan was performed however no records of this procedure were provided
to me for today's examination. Dr. Ke'ith's notes repeatedly mention the
necessity of surgical intervention, however I understand that nothing has
been performed to dafe. Injections have been administered and the use
of pain medication for pain management. Ms. Horvat missed three days of
work due to this Injury and she is currently employed. She is not taking
any medications at this time and is presently under the care of Dr_ Keith.
No follow-up freahnent was required.
PRESENT COMPLAINTS: Presently the patient complains of pain.
EXAMINATION: Examination of the Sprain ot the Right Hand/Wrist finds the
flexion to be 30 degrees, which is equal to 5% UE.
EXHIBIT J
PAGE6125"RCVDAT 11f3120051;52:23AMlEasternSfandardTime)`SUR;fMGfXPD3128"DNIS;144564752'CSID,330d38059i'DURATION(mm•ss):04-28 Page 95
1)011` f"J?005-7, H; [18: i0 AM B44C FAX ldo, 330 438 0597
P. Ofi?
Laura Horvat
Ciaim # 04-888455
Page 2
The extension is 40 degrees, whlch is equal to 4% UE. The radial deviation
is 10 degrees, which is equal to 2% UE. The ulnar deviation is 15 degrees,
which is equal to 4% UE. Further examination finds there to be moderate
tenderness present. No scarring or deformity is noted. Tinel's and Phalen's
signs are negative. Using the AMA Guidelines. Fiffh Edltlon, Page 466-471,
Figure 16-26 to 16-31, and Page 439, Table 16-3, the Total UE Impairment is
equai to 15% UE, which is equal to 9% WPI.
PERCENTAGE OF IMPAIRMENT: Based upon the AMA Guidelines Fifth
Edition Revised, the total WPI for this claimant is 9% WPI.
I have not provided care for this patient I have seen this potient one time,
on the above date, for the purpose of evaluating medical impairment.
Evaluation was focused to the allowed condiHons listed above..
The patient declined to have an assistant present during the exarninatlon.:
i
Respectfully submitted,
Rex Dinsmore, D.O.
EXHIBIT J
PAGE 7I25"RCVD AT 11f3f200S 7:52;23 AM (Easfern Standard Time)"SVR:IfAGFKPD3128' DNIS:144564752' CSID,330 432 0597' DURATION (mm•ssj;04•26 Page 96
fC^. i. 2005 5.46^h1CAAhkKl7Gt SuYYUKi
.
._
r.l:^
.
- R. 'cott 1^ruPkin, M.I).
400 St. ClalrAvenue
Cieveland, dhio 44103
]Phone (216) 426-2555
Pax (216) 426-2554
Deacrnbcr 14, 2005
Linda Percyneki, 3PHR, CWCP
Director of Human Resources
Cambridge Homa Honlth Care
4085 Ymbasgy Yatkway
Akron; OH 44333
RE;
Clairn Number:
Employer:
I3ste of Injury:
Date of);xamination:
Purpose of Eacanoination:
Allowed Cor,dieions:
f1(11
Laura Horvat
i p^^ 2 0 2005
04-888455
Cambridge Home Healtkt Care
10/151200a
t:t/14/2005
Bxtent of Disability and Permanent Pattial Disability
842.00 $prain/9train Right Wrist
842.10 5prain/Strain Rigbt Hand
H
48-yeezwtd rigttt-hsnded tbmale who wee warbng as a caregiver with: Carnbridge• llome Health
8ervicWS whmti she reported a snap and pain in the tight wrist while lifting a patient. She.was . .....
secn initially at Medina Hospital, where she was examined and then followed-up wi+3t I3r. '..'.
Branstein. Sbe says no x-rays vvere done at that time. She was pre8oribed medioatioHs and
physical therapy. She thea cam,e under the oare of a Dr. Erngles, who diacondnued her pbysical
for a periad of ^w^:Fd .:••"
therapy beeause of persiateaR paln. He apparently oastod
recvmtuandcd. surgory. She then oame under tha carcrn of a paut management ptogtatn where sha .,
received what sound9 3ike laser traatmants and contrast baths. She then sougirt oare at Wg4bore =. .'
1-Cospitai in the Occupational Medicine Depattment, and was referred to Dr. Michael Kruth, a
local orthopaedic and upper extremity apeu'ialistr Office notes xrom Ar_ Keith, dated 03(}8f2Q05 :..
througlt 0810513005 were reviewed. X-tays at that timo reportadiy showed dagenarative Cp.fa of ,,,
the eeaphoid with some widenittg. Dr. Koith also performed diagnostic and theQfetlRic ..:.. •
injections of the elbow and band/wrist. On tbDow-up 04/15/2005, Dr. Keith desedbes that her
conditiouwas aomewhat ittVroved, however, she aterted to use hei right haod and wrist with
inc;east:d pain. 13ccauae of the inopathutce ot rest, ihe: was casted. at that viait to maintain
immobiiity of the right hand and wriat. Ha also zetluested a bone sm at that time and, althougb
denied initially, was subsequently perfomted. Bone acan frorit 07/1512005 showed incroased
uptake in tho right radial earyel joint region 7t-raya frotn 03/18/2005 were negative for any
eigttitleant pathology of the right elbow or hand, although a"flexion contracture" was noted in
the fift p_roximal 'interphs ➢augeal jo'nt on tha right. X-ray ofthe right wsist is noted above.
Follow-up..wdth.Dr:- Keith on 05/1t<2005 ttotet that tlie clairnant bad incre++€ed comfort when
fully irnunot:iilzedl. Dr. Keitb notes that thla is consiatent with intercarpai inetability with
seaphohanata uidaning. He provided her^vith f4 wrist brace to iaaintain imutobility. He began
EXHIBIT K
Page 97
). -
CF!NtlK!USt SurruK^
RE:
Page 2 of 3
Claim 13umber:
04-459
discussioti ofpo9sible surgical alternetives, #oliow•up note from 08105C1005 indicates that Dr.
Keith reviewed the bone scan results with the claimant and pmvides supporting informapion for
aurgical indieations. Although he would like to pteserve joint.motion, arthrodeais of tbe wrist
may have to be considered, depending on the degree of degenetative changes:seen at surgery,
CUNMT 95'dTU$
At this time, the claimant has diaoorttinued pain meditations and aleeping medications. She is
using Tylenol and ice for aymptonmtie relief. She is otherwise healthy with sosgery to the right
ankle 12 years ago,. history of kidney stones, and childbirth timea.three. She denies any food or
drug.allergies.: She roporte she has.no pritnarycaze physieian. She contdnues to report pain in
the right wriat with occasionai numbness. She_drope objects at times,and reports that she caanot
lift a gallon of, milk or bruah her teeth/heis with the right upper extremity. She was apparently
unable to contplete the intake form. Other problems include sleep disturbance. She has returned
to work in another division of Cambridge Home Heaith and ie perfornvng clerical activities 20
hours per week: She is independent with driving and aotivities of daily living. She says that her
fiance and son help with hom,e tasks.
YHYg'iICAL.^^(A . T[OlY
Alert and oriented, in no acute distrCss. Siie is somewhat aoxious with subdued affect but
cooperativo and comtttunicaCive during the ezamusation. She was wearing a lace-up wrist brace
with a ntetal stay. She was able to remove'and replace the' brace independsntly. Gen®tal
strength in the right upper limb ia withln' norcnal limita proxintal ta the wrist; bowevcr, she
exhibits grip weakness and incomplete aodve:range of tnotion with hand flexion, Althoµgb.she
tends to hold lter.little 5nger in a conhaated poaitien, it is reduCible manually. She waA.able'to
axtend her fingera:fully, with encouragement . Mostly, she holds her hand in a loasc o=•limp
position, There is slight active tange of rnotion at the wri®t, Range of motion in the xight W4st is
flexion:2o degreas; extension 20 degrees, radial deviatiori 10 degreer, ulnar deviation 10 derrees,
Distal pulses araIntact. Light toueh sensation is intaot and symtnctric t'htoughout the liai ^d and
arm. Deep tendon reflexes ane 2t and rymmetric at the biceps and triceps. There is aolattDaffi
repponse to touch ;and palpation. There is ditTace tendernees even to light palpation of ths g;st
and lateral forearm. There is a soft taass or lump atopg the proximal ulnnr aspect of the.aght
forearm. Passive range of !motion is better iit the hand but painAzl and limited due 1o•^tin
inhibition. There le no evidence of changes in color, swalling; defortnity, sce=rtilBr'qr
temperamro changes of the right hand or wrist.
OpYNION3
..
ogc CS `iJ ^^.
rr
In response to your spocifie quostions; 2 0 2005 :.^
i, WRat, in your opinion, ate some poseible causee for her pr
^-I
Based on claimant history and review of=rt±edieal records, it appears that Ms. Horvat
austained injury to her right wrist and hand while engaged in employntent as a aaregiver for
Cambridge Home Health Catc. An underlying ligamentoud injury may be alao a result of
EXHIBIT K
Page 98
;. iL Caf+iN^luG SOrPUB
IVV. 71L
r.
i
9; 9
' RE: . Lao%;t;,.Mat .:rw Page 3 of 3
Claim Number:
04-888455
that claim, resultiog in degenezativc changes that becarne apparent both by x-zay and bone
scan five to nine months post injury. Whether there was any prior injury or pre exisdng
degenerative change in the wrist is unknown,
a. Has the t.pe>ato^ ent to date bean medically aecessaryT Why or why not?
it is my opinion that medioal treatmcnt te dats bas been appropriate and targated for the
recovety. from a simple sprain or atrain injury of the wrist andlor hand: Further diagtosric
testing by x-ray in 03/2005 and bone scaa in 07/3005, along with clinical correlation by Dr.
Keitlt, suggests that appropriate treahnent for her ourrent ooadi4ion would be surgicsl.
3. Are there any objeogve lndicatlaus. of .symptom tapgnilteRtloa of maifngersng, and
what tests or observation did you perforim, if aay, to determine the aame?
As ndted above, the claimant was somewhat anxious with a subdued sffect durksg today's
enantination, however, this would be entirely appropriate, givcn ber stat® ef chmnic pain
and discornfort. Althougb ex8mination was sotnewbat linited due u+ guarding and pain
inhibition^ again I found no patt'scular aspeat of ber psyohologieal prasenffition to reflect
matingering, although there may be symptom raagnification related to pain. These
comments rsgarding symptom ^ tnagaifioatlon and maling0ring a:e based on visual
inspection; phyaical exarniaat9on, and veifial history wit'h the claimant.
4. Please detexntine s.ay partial, perroutentiwpalrmeat.
At this point in time, it is my opinion.that the olaimaat has some degree of periment
partia3 itnpairment due to reatricWd rsngc of motion in the:wrisx Based on range ofAptiba
measuremaats, thia would be eat9tnated at a 20% upper extremity irapairment, or 147°Yo
whole peraoa impairmant. I do not fecl, however; that the blainaettthas achieved mwdtnum
tnedioal improvernent (MMI): Basedon cumntdiagnostlo fiadings, it wotft bemv
reconunendation that the phreician of recoxd appl^f^additional allc^n^ AF I2r'Ktith
points out, ligamentous itljury of the right wrist would be coded identically ta aprain/e!r$in
• : _'i'iy^
'
of the right wrist Since there appears
-^^ntous
injury as weB as scaph6ttGfate
do eaeration, the phyeiotan of record znay also want to apply for dagenecative arthtitig of
the wrtst,. It is m inion that it would be reaeonable'to mvve
...
.. .
....
•. .
^.
. ..'
inmrvenrio , baE d aa r CaitLs optntem. seo opmton consultatton may ^SlO•be
consideredwith an orthopaedic upper sxtramity surgical epecialist.
I have not provided care for Laura Flor.vat on thia date or at any time in the past. I have gean her
on this viait for the sole ptupoao of evaluating taedioal t' mpaitment. T his assassmei<t was focusad
to the allowed conditions listed above.
7(^ s(^ R
1^^..^ ^s
1 DEC 2 0 2005
ii
By
EXHIBIT K
Page 99
N^NN.. 1U0b`' 9:d9HK4"" CAMIiYIUG[ 5UYYUKPVLiIIE
nu, u-uul1 Y. 13
CRYSTAI. CUNIC, INC
Stow / HUdaon
cR'litaf•,CUMC
imMa4CamNiCF7nw
OG1HOPANICdYR6FaH
AYMaeI R. MngdFv MA
(,'a121b11fp Ha1AC .HCA;ti1 CHfe
&$: Letir$13G2vat
Claim# 04•6B84S5
DOI; Oatober 15, 2004
Allowed Conditions:
842.00-9pcaldetrain of aviiat, sFght
842.10•sptain/straln ofhand,right
She in a 49 year old xbmale h.are today for orfFwpedio ovaluatlon. Mr- liorvet hms a
hiatory of psoblang wlth heQ right wniat, gha rolatos this to mn ityttty ahe avfYe:vd while at ;r..
work tbr Cembridgo liome Health Cere as ahome health aid. Sha waa ^g a^ ;
pationS on. October 15, 2004 when she natad insrosdng pain in 3w rlght wrist atd harii^
6ho wos initiall,y evaluated on tiw 18lb of Ootober 2004 when she preeented to Llfe on t€ie ;
rlook aere medieal ^erviao. 93>e wat initiolly disgnoAed ae having a tigi^t. wr,lat Ipraia.
6ho contlnacd to oomp]ain of right wriet pain ®ad was aefare8 to Dr. Bagle', a liand
pnrg®oh at the Cryrtal Cllaio, 8Lo was sxn oa Deconaba 6°i 2004, At the thnm, ^3r,
8agle's fek tt+at M^. Horvet euffored arigbtwriat spral,n whichwes supaimposedon prer
exisfing arthtitts of the right wriat 8pecifloalIy Ms. FloxVat had evidence of pxo'^stingvF
arthrit3a due to aaaplwlunata ad9anoed oo1{ap4o (S7.AC). 8hc was placed into a sp11.4it
imcwbllizlag hcr hand aad wrist She vvae then zatsztad ia ooaupatioael tha,cepy. With
thin Ms. Sorvat noted eome relief of h4r right'wrlst pala 8ha was eventually eeaa by Dr,
1Cafth in lufemh of 2005 who noted deganotativo uthr[tts oytho rig6t wriat Dx, Koith
tb,an Sicnama the physioian of teoord. She was snbsoquently followed up in April of
?A05. Sho was aivaa an injecdon in her ri@fu wript and thea plsoed into a oast.
Bubcey,>ont follow up visits by Dr. Koith ware eho pertbtmed. In each af4heaa visita Dr.
Y.nitltnotod e+vidonoe of atthrltia in t'h,o tfsht wrist. Due to ongning aamplainte of pain in
fler rlgkt wtiet, Dr. ICeitL moammonded n four cornor wrlst 8uion with exoiaiaai of tha
scaphoid, A bollow up bona saam wu obtained !n fuEy of 2005 wbiah dem.ur--tmtsd
inoreaaod uptake in the radiocatpal joiurt ooutiaoart wfth degeriototivo srtiutHs. Tn Auguat
of 2005, she waa agsln sem by Dr. Kelth and ttn.goty reoommanded et that tirtuo was a
limited fusion varrane a pinximn! raww cerpoc6omy. I1n diaoussiag hat cmo with Ms.
atatea dset ber wrist is to the pa8nt whexo it Is giving hox constant paia unless
She says any type of movemd<rt ia ex,]remnly painful forhor.
4A861MflRd.Y RD. I EiCNd OH ddM / 9la-075-1631 / FAX, 38ad76-1684
NhAtl W^ye Web; t'Atpd/www.crydalc&Ve.cam
Page 100
NAR.
;.2006
9:50ANI CAMBRIDGE SUPPURILIN[
...^...
-
N(1. J8C P.
Pago 2 RA: Ls:xcaIi.orvat
Claim: 04-868455
Sha is ccmr,ntly not taldng eny madicines.
PRIOR SURGICAI.IiISTOItY: 3argory ouher right ankle in 1994.
SOCIAL IiISTdRY:
8ingle 71m Cktldren
She ernakos apaok of oSgarettom a waolc. She oooMonnily drinks alcohol,
PHYSICAL BXAMINATION:
I-ieight: 5'7 Wolpbtt 155 Ibe.
She bas no kaown drng allorgieR. She formally vriulo ar a bonu hoalth ald,
EXkM: Sbe is in no acute diatress. Sbo ie acvAiro, oiart and oricuted X3, Ccardei nerves
2-12 are grossly irdaot. She wa1k8 vvith a nooanal galk Hxernfuadon of the rlgbt uppez
axkemity; she was waarlug a rnw splint Wltloh I smuavcd, ehe oomplained of axquisite
pa[n with aay type af patpstlon of b=rig*wrlat Bxatalneaon of:tha wrlat itself was
13mited ;aaeandnry t}m qaYiaat'r cr^plamta of e^cqui^ peia with aaq typa of
maatpu3at3on oftbe right wrist ehe had ii^l1 ra^sgo of motfon of s)1 ofl^ Sagee9. She
had good radist aud nlnec pulroi. 8he had onmfg08 tandcma+ ^ aad maTkod.l,y llmited
rango olmotion of the wrist woondary to cmmplaints of paim. She had i411
pmnatlodsulunation at t5m elbow aod wrist but again oomp]n4ned of pain with r=ge of
motion.
I'h'R'KESSIOI+F: This is a 49year old fcmale with pceaxist3ng oettaartluitie of the zlght
wrtst. It is quite obvious 8nnt tb,a uotas reviewed by taysolf t6at Ms. kIoivet hsd
degeaocative oheages in heQ wtlst prior to har isliury ia Oato6er of 2004.
I".
MAR Q $ 200G ^
L
EXHIBIT L
Page 101
'd..°;. [Oi6' 9:^DAMir GAMBRIDGE 5l1FPU&Tv^uue hU.08Gh1 N• ='S
Pugo 3 FtB: Laura Horvat
Cia^in i/ 04-888455
Tn respqnea to speaifio queadonsc
1.) In your opinion, is W. Hrnvat's ourreat complaini a direct snd cauFal reaolt of the
aocidentel in,yury ID/15l047
No. Ms, liorvat puPPered $om pra-exlsting oeteoattbridR of the right wcisG 8he wa3 eaon
by two hand speoirxliets, both of whom noted degenerative ohaugea in b.ar ii$ht rn'iat
which obviously praF•existed hor lr♦jury on the 15d' of Ovtobe.r 2004. 5pecifxoally Dr.
fingle's noted that she had avidcrloa of acapholtmato advande collapse whioh ie caused by
an injucy to the naspholunate ligamant oauaing diactaaeo betwcen the two banes which
oventually resultr in arthritlo ahangos withfn the wrist. C#iven tha timo ftWme involvcd
with this injury. .#t is obviow that she suffexed from tho <ttlttitia prior to the iq}ury oa
10/15/04. Tbe iqpry on 10/15/04 cameitred of e sprain of the rlght wr.tet snd aggrsvation
of pto-exieting artbritis of the right wriet Zypienl treatment for dst 8 typa of i^iury ia
conservative with itnmobilizetion attdaati•fuflammatory rmedidne.
R
2) Aro tbe tervitoes rnquastcd by Dr. 8oith reesonably neecosary for tho ttcatmant oftho
ellowei conditlons4
Tho current allowed condltiona ere 842.00 spraf.a/afre3n of wrict, rlght divan the allowed
condittone in this a1altp, the treatmentroc3ueated by Dr. Raith is not medi.cally neoessary.
Dr. Keith is requesting to iraat Ma. IiorvaA'a right wrlat arduitis whictx is cunentty not
allowod in this claim,
3.) Arc thoro otty objaative indiarxttona of ey,mptom , iaa,gaiflaadon or malittgering and
what teatg or obrorva@ona did you perPortn, if any, to determine the eame7
Ma. T.-Iorvat compleinad of extreme painvrih3s any typo o^Ppalpation of the rlght wrist or
aqy type of rnaipulstlon of the right wriC Some degreo of cymptom. tnagniflontion
wutdbe a9cortatngd $om tlu qpe ofpudn complained which she ddmeaekYted £rom such
tnfnicnat inenip^ilation af l^ec wtict iiaweaer, itwould be difficult for mo to mahe a fum
detarminatiun on whetha or not tha repre:etned hua symptam magnifloatlon or ttue pain
ee pnia itsaif is svary subjeative eutlty.
Sincruely,
EXHIBIT L
PaBe 1 ^^ 2
Page 102
"0 ;j07!21) 0 5 14 :20 FAX 210 241 6031
MetroHealth
ti•ILLAC:Y LoPRESTI & h{ARCIa
RC^-^A^^V
ac12 2 iDa7
MtctT,+Ft. w. tcL11.13, M.D.
19ann, Slwnidcr & Upper Extren,hy
Contplex Pnrnlysis Diemdcrs
2500 M0ro17enlth Drive
Cievelanu,OH 44109-1998
Office (316) 778-4399
FAX (:16) 778-4690
/ti
n.w•
CASE
SCHOOL or MFuKINE
AD4rtINC
October 5,2007
Linda Hunt RN, CRRN
VoCare Services Inc.
2S001 Hmery Road 9320
Clevcland DII 44125
Dear Ms. Hunt:
RE: Laura Horvat
Date of exam: 10f5l07
Unit 95266472
SSN:^
Thank you vety mud't for the kind letter regarding Iter vocational pragram. Ms. Horvat's current x-rays are
satisfactoiy. Her cast is off. She is starting therapy to build strength am1 range of motion in her hand. She still has
tenderness around the Incision and the plate. It is likely that she will have tllat plate removed in a ycar or so but not
anything at [he present time.
The next hurdles are vocational rehabilitution. She is now app'opriatc for assessment of transferable skilis. She lias
done some diligence here and has looked into othm' work opportunities. She will discuss them with you. She is
going to statt inaking contacts oow for what I would consider light duty positions, clerical, adrninistratlve, uonweight
bearing and nonweitht lifting. The vocational plan at this stage should include assistanco wittt thosc job searchcs
and resumes. I havo no intention of rcturning het• to heavy manual labor. Her pain relief is good onough that it
shouldn't interfere in participation in any appropriate rehab activitics. lf the rightjob comes up she should be able to
close her rehab cuse in a couple of inonths. I axpect a platcau I strength for light clerical assignments within
probably 3-12 woeks.
Very truly yours,
Michael W. Keith, M.D.
Orthopacdia & Fland Surgery
MetroHealth Medical Centu
Southwest General Medical Center
MWK/ca
EXHIBIT M
The Metrol.iealth System
2500 MectoHealrh Lhive, Cleveland, Ohio 44109.1998
216 - 778 - 7800
PAGE20f20"RCVDATSITI20082;10:47PM[EasternDaylightTime] "SVR;IMGfXPD4129"DNIS;944564166'C51D,2962416031'DURATIDN(mm•ss),03,26 Page 103
, HOV-0^-2e07 12 :36 -- OH I 0 SPEC 1 nLTY PE-rtJORK
216 ^26 25`S4 r.02i10
Ohio Specialty Network, LLC
P.O. Box 603787
Cleveland, Ohio 44103-0787
Phone: (216) 426-2555
- Fax: (216) 426-2554
November 2, 2007
Ms. Heidi McCune
Workers' Compensation Admtnistratlve Assist.
Cambrldge Home Health Care
4085 Embassy Parkway
Akron Ohlo 44333
NOV 0 5 2607
RE: LAURA HORVAT
Claim #f• 04-888455
Date of Injury: 10/15/2004
Allowed CondRions Right Hand Sprain/Strain; Right Wnst Sprain/Strain; Right Wrist
Arihropathy
Dear Ms. McCune;
Thank you for the opportunity to revlew the med+cal claim file of Ms. Laura Horvat'
1. Issue: Have Ms Laura Horvat's allowed conditions reached maximum medical
improvement (MMI) in the present claim?
ll. Conclusion: Yes Pursuant to the Official Disability Guidelines Treatment of
Workers' Compensation, further treatment is not reasonably necessary and
appropnate
Ill. Facts derived frum the medical record: I accept the following findings and reporis
of examining physlcians Z Ms. Laura Horvat is a 50-year-old' home health caregiver
with Cambridge Home Health On October 15, 2004, she was caring for a patient
with (multipte sclerosis) MS patient who required five Irfts, and her right hand became
swollen with discomfort as she was moving the patient to the potiy chalr to the
wheelchatr and back to bed 3
oate of blrnh ts
' In accordance wfth standards for fi1e revlew State ex rel. Wallace v lndustr al Commission (1979), 57
Ohio St 2d 55, 59 and also State ex rel Bovne v, Greater Cleveland Reglonal Transit Authordy (1996) 75
Ohio St,3d 45B, 460 and State ex rel Dobb ins v industrlal Comm, 109 Ohio St 3d 235, 2006-Oh1o-2286
3 See FftOI of 10/15/04
EXHIBIT N
9t d
ti£t 899 oc6
B 3woH H`JataeWVO 9t:01 LOOZ
^age" 104
,NOV-9G-26r07 12'36 .UH10 SPECIPLTi NETWORK
216 426 2"54
P.F3i16
RE: LAURA HORVAT
Page 2 NOV 0 5 2007
She was initially seen at Medina General Hospital on October- 18; 2004 by
Dr Brustein in conjunction with Nurse Practitioner Watterson 4 It was noted that Ms.
Horvat is right-hand dominant. Again, the same mechanism of injury was
referenced, and assessment was rlght hand sprain/stratn 8nd right wrist
sprainlstratn. The employee was placed on restrictions6 and was assigned to light
duty.b In addition, she was sent to occupational tharapy 7 She attended
occupational therapy through the end of Oclober.8 She did not appear to have any
progress whde in occupational therapy during this time. She continued at the
Occupational Health Clln c with Dr Brustein 9 The employee remained on
restrictions during this time period, including a splinti0
Whlle in rehabilitation, it was noted that her wrist flexion improved to 50 degrees,
extension was to 60 degrees, and grip strength was 20 pounds. She continued to
perform light duty." On November 8, 2004, she was seen once again at the
Occupational Health Clinic with Dr Brustetn'2 She had a shght de0rease in her pain
rating; however, she continued to have a positive Ftnkelstein test Assessment was
right hand and wrist strain with slow tmprovement13 Additional occupabonal therapy
was requested.14 By November 29, 2004, Dc Brusteln arranged for evatuatton and
consultatton with Dr. Engles, orthopaedic hand spectalist'b
Dr Engles saw Ms Horvat on December 6, 200418 X-rays demonstrated a
narrowing of the radtoscaphold interface with marKed spur formation. There was
also a gap at the scapholunate interval. On lateral proiection, she had dorslflexion of
the lunate conststent with a DI51 deformtty. Additional x-rays demonstrated
irregularities of both the distal radius and on the radial border of the scaphoid
consistent with an SLAC wrisL Bilateral clench fist views demonstrated diastasis on
the right as compared to the left with respect to the scapholunate interval. There
were no degenerative changes at the left radial styloid. Overall assessment was
sprain of the nght wrist superimposed on SLAC wrist; arthritis, right upper extremlty;
and history of hypertension. Dr Engles Informed the employee that ". while she
may have been completely asymptomatlc, there is radiographic evidence of
underlying wrist arthntis, specifically, scapholunate advanced collapsed wrist
arthntis. I discussed, fortunately, this is in its early stages as she appears to have
° See 10/18/040ccupauonal Heahh Chnic note
See MEDCO•14 of same date
`See 10/20/04 RTW program light duty
7 See OPT notes of 10125/04
See 10/25/04 thru 11/30104, 10 vistts inclusive
° See 10125/04 Clinic Note
te See MEDCO-14
" See 11/04/01 rehabdttation servlces notes
tz See 11/08/04 Occupational Health Clinic nole
"See also 11/08104 MEDCO-14
14 See 11/16/04 evaluation and C-9 of 09/08104 and 11117/04
i5 See Ocoupational Heahh Clinic nole of 11/29/04
"See Dr Engles consultation of 12/06/04
EXHIBIT N
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H BWOH 30012fawV0 9t:01 dooz-ade 105
. i 12' 37 - OHIO .SPEC IAI.: rr NETwoFZC
=15=Cco 25-`.4 P. F+4i10
RE' LALfRA HORVAT
Page 3
NOV 0 5 2007
disease only at the radioscaphold interface
and/or surgical IntervenUon was discussed
"" The posslbility of'steroid injection
Ms Horvat returned to Dr. Bn.tstetn and was seen on December 13, 2004's He kept
the employee sphntedi9 and saw her back in 2005_20 After being Immoblllzer for four
weeks, she had no significant Improvement. She was doing mainly phone work, as
per her restrictions She was again referred to occupational therapy with the
possibility of Injectlon and follow up.
Ms. Horvat was seen in occupational therapy once again on January 3, 2005 z' She
remained on restrictlons22 and did not have any significant improvement. As such,
she was referred back to Dr Engles 23
On February 14, 2005, an Independent Medical Examination was performed by
Dr Randt 2" Dr. Randt opined that treatment to date was reasonably necessary and
appropriate and that the employee should follow up wlth Dr. Engles.Zs
X-ray of the rtght elbow was then obtained, which was unremarkable .26 Stmilariy,
x-rays of the right wrist were performed, A flexion contracture of the fifth digit was
noted and was otherwise a negative x-ray of the hand The right wnst demonstrated
degenerative disc disease involving the rad{onavlcular joint Intraartlcular
calcrfication or avulsion was suspected There was an irregularity of the cortical
surface of the navicular with degenerattve cyst or other radiolucent abnormallty
noted There was a widening of the radiolunate joint space consistent wrth
radiolunate subluxation There was also an abnormal posrtion of the hook of the
hamate with follow-up examination recommended 27
Ms Hprvat was then seen in the Ambulatory Surgical Center on March 18, 2005ZB by
Dr Keith. He also obtained x-rays, which demonstrated right hand degenerative
cysts of the scaphotd with some widening. He recommended reevaluating the
employee in four weeks. Dr. Keith prescribed tramadol, carlsoprodol, diclofenac,
and amitriptyllne 29
See recommendatlons, page 3, 12/06/04 report of Dr. Engles
1A See 12/13/04 Clinic Note of Dr. Bruslein
See also MEDCO-14
See 01/03/05 Chnrc Note
Z' See 01/03/05 PT note
See MEDCO-14 01/03/05
n See 01/13/D5 Cllnic Note, also MEDCO•14 and rehabditation servIces and 01/14/05 C-g
See 02114105 IME report
Z5 See also C-9 of 02/17/05
See Dr. Blackburn x-ray report of 0311 BJ05
''' See Dr Blackbum repott of D3118/05
29 See 03/18/05 Chnlc Note
29 See 03127105 Workers' Compensation rn7orce for modicatrons
EXHIBIT N
LT d SIGT 899
OSc
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flO0IN8WV0
9T:0i LOOZ-ftAAN
106
. 140Ri-U2-2007 12-37 CIHiD `_-PECIPLTY 17ETtdUrh:
_'15 426 2Sl-d P.(iS/30
RE: LAURA HORVAT
Page 4
Dr Keith saw the employee back on April 15, 2005.'0 He noted improvement after 0 5 2001
in]ectton of the elbow and hand, although the elbow remained painful. The thumb
returned to hurttng again after the injection. Injections were again recommended - A- ^ request for clarification was made of Dr. Keith regardtrig medicattons."
Ms. Horvat was seen by Dr. Moran, psychologist, on April 22, 2005. 2 Dr. Moran
opined that there was an element of somatization and that it also appeared that
Ms Horvat was dependent, insecure, and somewhat htstrionic. Supportive
psychological counseling was recommended33
A bone scan was requested.34 On April 28, 2005, Dr Keith responded and
recommended that he be allowed to prescribe the medications. On May 9, 2005, in
response to Dr. Keith's letter, the bone scan was denied and the amitriptyline was
processed and paid,35
X-rays were again obtained on May 16, 2005. There was free tntraarLcular osseous
fragment most likely representing an old avulsion with a cortical irregularity of the
navicular bone and also mild widening of the scapholunate joint. The right hand was
negattve 36 Ms. Horv2t retumed to Dr. Kerth on May 20, 2005 37 A four-comer fuston
ptus scaphoid excision was recommended.
A bone scan was performed on July 15, 2005 This demonstrated no stgnificant
uptake, although on the delayed images there was uptake within the region of the
radtocarpal joint. Underlying degenerative process of a fracture was considered,313
Dr. Keith reviewed the hone scan and opined the employee should be considered for
surgery, specifically an tntercarpal arthrodests or resection of bones 39 Outpatient
surgery was requested 4D
On October 23. 2005, a Permanent Partial Impairment Examination was performed
by Dr Dtnsmore."' The employee was found to have a whofe person impairment of
nine percent (9%).
Ms Horvat was then seen by Dr. Krupkin on December 14, 2005 for an Independent
Medical Examinatton.°2 Dr. Krupkin opined that treatment to date was appropnate.
'0 See 04/15/05 Cl n c Note of Dr Ke th
see 04/20/05 correspondence
72 See Dr Moran 04/22/05 [ME
See 04/22105 psychological assessment
See 04/22/05 C-9
35 See 05/09106 letter
96 See Dr Blackburn report ot 05116/D5
37 See 05/20/05 Clinic Note
'8 See 07/15105 bone scan as read by Dr. Banker
'9 See 08/05/05 note of Dr Keith
"o see C-9 of Ofi/0e/0s ,
4' See 10/23105 PPI exam report
EXHIBIT N
er d 1I£i 999 0££
H 3WOH 3001N0WY0 31 OI LODZ-60-AON
Page 107
tIOV-6?-2Ei07 1? 37 OHIO SPEC[riL.Tr NETLIDRK
?1E 426 c 54 P C^_i16
RE LAURA HORVAT
Page 5
NOV U 5 2001
A twelve percent (12%) whole person impatrment rating was noted; however,
Dr Krupktn opined that the employee had not reached maximum medical
improvement
Ms. Horvat was then seen by Dr Magohne for an independent Medical Examination
on or about February 7, 2006 43 Dr Magoitne opined that the requested surgtcal
intervention was not medlcally necessary and appropriate for the allowed condit[ons.
Outpatient surgery was subsequently approved "° On October 16, 2006. Dr. Keith
recommended intercarpal fusion or a proxtmal row carpectomy depending upon the
ligament instability encountered at the time of surgery 45 X-rays obtained on the
same date of October 16, 200646 demonstrated degenerative joint disease of the
radionavicular joint with cortical remodehng irregularity of the scaphoid and adjacent
intraarttcular free osteochondral body with mild widening of the scapholunate joint
Ms. Horvat was taken to the Operative Theater on October 26, 2006. An arthrodesis
of the wrist with autograft and carpectomy one bone on the right was performed by
Dr Keith a' The emplo^ee was Immobilizer with a short-arm cast and followed up
with Dr Keith into 2007 8
Postoperatively, the first row carpectomy with removal of a significant portion of the
scaphoid was noted on x-ray There was an interoarpat fuston with three oblique
nalls stabilizing the first and second row through the capttate_ Free osseous
fragments were also noted wrthln the vacatad carpal space. This appeared to be a
satisfactory postoperative appearance.45
No significant Interval changes were noted on follow-up x-ray of January 15, 2007.50
Pin removal was requested by Dr. Keith.5' Ms. Horvat was taken to the Operative
Theater on January 25, 2007 for removal of implant of the rigllt wrist where pins
were removed 52
On February 2, 2007, Dr Keith noted that the wounds had heaied. Stability of the
mtdcarpal spaces was noted iniraoperatNely with pin removat_ Therapy to regain
strength and range of mot[on was scheduled, this in addipon to nonweightbearing
°2 See 12114/05 IME report
"' See 01126106 letter noting the appointment for 02/0i/06 with Dr. tvlagofine whose undated report was
recetved 03/03/06
" See 10/04/06 C-9 and 10119106 script of Dr Keith
°' See 10116/06 Clinic Note of Dr Keith
°D See Dr Blackbum report of 10/16106
°' 8ee 10126I06 Operatr,e Report
'" See 11106/06, 12111/06, and 01/15/07 repons of Dr. KeM
A0 See 11/06/06 report of Dr 6lackburn
° See Dr Blackburn report of 01/15107
See 01/18/07 C-9 request
52 See operattve Report of 01125/07, also Pathology Report of 01/25/07
EXHIBIT N
61
d
TIEI
B99
oc6
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91;OT
tooz^age' 108
.ND^^O^-?G67 12 --n nN10 SPECIFLT'! IlETLJOf'.K
216 426 25:>4 P. 0'7i10
RE: LAURA HORVAT
Page 6
and splinting 53 The employee started occupational therapy and had swelling around
the wrist with not much progress in range of motion, accordirlg to Dr. Keith
He recommended that she focus only on strengthentng A C-84 for three months
was also scripted 6°
By March 5, 2007, the occupational therapist also noted that the employee was
instructed to be less aggresstve with exercises and to conltnue use of the splint
mainly at night and during stressful activi6es during the day Emphasis on pain
management, desensitization, and edema control was planned for bv the
occupattonal theraplst.s5 The employee remained off works6
In occupational therapy on April 13, 2007, Ms Horvat participated in therapeutic
activrttes and had Improvement in hypersensitivity over the dorsal inciston of the right
wrist However, the utnar pin stte was still sensitive $7 Similarly, on April 16, 2007,
the employee continued to have discomfort and had difficulV lifting a glass of milk or
turnng a key in her car. She reported a pain scale of 7/10 5 She was dependent on
the splint and using her left arm for activities of daily living
On May 4, 2007, having completed 11 of 16 occupational therapy visits,
occupational therapy was contlnued.59 On May 4, 2007, Dr, Keith noted the
employee conttnued to have pain in her wrist wtth 20 degrees ot extension and 30 to
40 degrees of flexion, stdl wearing her rigid brace aimost all the time•60 Dr. Keith
recommended that she discontinue therapy, functioning at about a 5-pound lifting
level. A wrist arthrodests was considered A trtel of an tmrnobilizer was
recommended after options were discussed.61
By June 8, 2007, Ms Horvai wished to proceed with an arthrodesis after the cast for
four weeks improved her functton.82 Presurgical evatuatron and planning by
anestheslology was conducted s3
On July 19, 2007, Ms. Hofvat was taken to the Operative Theater by Dr. Keith who
performed an arthrodesis of the right wrist with autograft for a right arthropathy NOS
of the forearm ed
See 02/02/07 Clinic Note of Dr Keith also Nurse Practtuoner Chohaney
See 03156/08 report of Or Keith, atso 02/13/07 occupational therapy note of Preustto
u See 03/05107 report
.% See C-84 03/16/07
17 See 04/13/07 raport
sa See 04/16/D7 occupattonal therapy follow-up note
sa See 05/16/07 OT request NOV D 5 2007
6D See 05104/07 report of Dr Keith
See 05104107 Clinic Note of Dr Kerth
See 06/08/07 Clinic Note, also 06/13/07 entry
63 See presurgical 07113l07 notes for planned surgery of 07119/07 - •
°' See 07/19107 OperaUve Report of Dr Keith
EXHIBIT N
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RE. LAURA HORVAT
Page 7
On July 27, 2007, x-rays demonstrated surgical revis i on of partial carpectomy and
intercarpal fuslon.65 Dr Keith saw the employee postoperatively. No infection was
noted, and a short-arm cast was appiied.66
By August 24, 2007, Ms Horvat's wrist pain was gone with x-rays showing good
position and alignment A new cast was provided ' On August 24, 2007, the
employee had x-rays perfomied, which noted a plate and screw device traversing
the wrist with anchoring screws into the distal radius and third metacarpal, this with
narrowing of the radtocarpal and intercarpal spaces with partial resection of the
proximal pole of the scaphoid There was no acute fracture or dislocation, and
alignment appeared to be maintained. Impression was status post arthrodesis and
plate and screw device with alignment reasonably maintained 68
Most recently, Ms. Horvat had her cast removed and was capable of driving. As of
October 18, 2007 occupabonal therapy continued.69
IV. Dlscussion: Application of the Miller Griteria requires a reasonableness standard
for relatedness, necessity, and cost 70 In specific response to your question.
I Have Ms. Laura Horvat's allowed conditions reached maximum medical
improvement (MMI) in the present ciaim?
Yes. On October 15, 2D04, Ms. Horvat sustained a hand and wnst sprain/strain.
She subsequently developed nght wrist arthropathy
Pursuant to the Official Disabllrty Guldelrnes Treatment of Workers'
Compensation, further treatment is not reasonably necessary and appropriate
The spraln/strain of some three years ago, to a reasonable degree of medical
certainty has resolved. What remains is residual impairment from the allowed
condition of arthropathy 71
On July 19, 2007, Ms. Horvat was taken to the Operative Theater by Dr. Keith
who performed an arthrodesls of the right wrist with autograft for a right
arthropathy NOS of the forearm72
By August 24, 2007, Ms. Horvat's wrist pain was gone with x-rays showing good
position and alignment. A new cast was provlded" On August 24, 2007, the
fis See 07127/07 report of Dr. 8latkbum
" see 07127107 report
61 See 06l24/07 report of Dr. KeRh
°g See Dr Amson report of 08124/07
b9 See Vocare email nots of 10/1812007
'° State ex rei Miller v industrial Comrnission 71 Ohio St 3d. 229 (1994)
" Loosely defined as "disease oi the joint'
7z See 07/19107 Operai4ve Reporl of Dr Keith
'' See 08I24/07 report of Or Keith
NOV t) 5 2007
EXHIBIT N
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RE- LAURA 1-1ORVAT
Page 8
employee had x-rays performed, which noted a plate and screw device traversing
the wrist wlth anchoring screws into the distal radius and third metacarpal, this
with narrowing of the radrocarpal and intercarpal spaces with partial resection of
the proximal pole of the scaphoid There was no acute fracture or dislocation,
and alignment appeared to be maintained Impression was status post
arthrodesis and plate and screw device with alignment reasonably malntained.7"
Ms. Harvat's cast was recently removed. No doubt, she will have persistent
impairment (PPl), however, further treatment is not reasonably nacessary end
appropriate solely for the allowed condition of arthropathy.
Dr. Keith notes good alignment and Ms. Horvat reported'5 her pain as gone.
I thank you very much for allowing me to participate in the evaluation of this employee
If I can be of further assistance to you, please do not hesitate to contact me
to J. BorriUo, M.D., J.D., M.S.
DJB:tmm
NOV 0 5 2007
" See Dr. Arnson report of 08l24107
'S See 08124/07 repon of Dr Keith
EXHIBIT N
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