State ex rel. Menold v. Maplecrest Nursing Home - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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The State ex rel. Menold, Appellee, v. Maplecrest Nursing Home; Industrial
Commission of Ohio, Appellant.
[Cite as State ex rel. Menold v. Maplecrest Nursing Home (1996), ____
Ohio St. 3d ____.]
Workers' compensation -- Application for permanent total disability
compensation -- Medical report which predates claimed
disability period is "some evidence" supporting Industrial
Commission's denial of application, when.

(No. 94-1255 -- Submitted March 19, 1996 -- Decided July 31, 1996.)
Appeal from the Court of Appeals for Franklin County, No. 93AP-
979.

Appellee-claimant, Patricia Blangero Menold, was injured in the
course of and arising from her employment with Maplecrest Nursing Home
for the Aged. Appellant Industrial Commission of Ohio allowed claimant's
workers' compensation claim for "low back sprain/strain." Although all
treatment was conservative, claimant never returned to work.

On November 20, 1989, claimant was examined on the commission's
behalf by Dr. W. Jerry McCloud, who stated:

"There are no abnormalities in her gait pattern. The deep tendon
reflexes to the knees and ankles are uniform both with and without
augmentation. Each of the various radicular testing procedures are negative
bilaterally in each of the various positions. A Bragard's test is also negative
at the end of each of the testing procedures. There is no gradeable
deficiency in the strength of the various muscle groups nor is there a
dermatome type sensory discrepancy. The pelvis is level. The lumbar
lordosis is well maintained and demonstrates good flexibility. Subjectively
she demonstrates a uniform loss of roughly one half of her functional
lumbar reserve but does so without radicular complaints in each of the
various directions. The paraspinous muscles do relax with this activity.

"This claimant does have loss of lumbar reserve but has otherwise
normal physical evaluation. She would require restrictions against
repetitive bending and lifting of objects whose weight would exceed an
estimated twenty pounds, but I do not think other restrictions would exist.
These restrictions would preclude certain of her work activities as a
nurse[']s aide. Historically she relates to me that she has not improved to
the point where she feels she can resume those activities.

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"It is my opinion that this claimant does not demonstrate medical
evidence consistent with considering her permanently and totally impaired.
She is capable of sustained remunerative employment. She is not capable of
her the [sic] entirety of 1985 work activities. The changes are permanent
and she has reached a level of maximum medical improvement and
demonstrates a permanent partial impairment of an estimated 30% of the
body as a whole. Rehabilitation would not seem to be indicated as she is 63
years old."

Eleven days later, claimant moved the commission for permanent
total disability compensation. The November 8, 1989, report of. Joseph A.
DiDomenico, D.C., was submitted in support of the motion. He reported:

"Claimant complains chiefly of constant lower back pain which
radiates into her right hip and lateral thigh. She also experiences persistent
numbness and tingling in her hip and thigh. Her condition is made worse
with bending, lifting, twisting, pushing and pulling, sitting or standing for
long periods of time. Cold and damp weather aggravate her condition. At
times she needs assistance for ambulation.

3

"Examination: Examination reveals a loss of the normal lordosis.
She ambulates with no significant abnormalities and has difficulty heel and
toe walking with some discomfort. Range of motion shows flexion
restricted to 45º and extension to 5º. Left and right lateral flexion were
restricted 10 and 25º respectively. Rotation was limited 15º bilaterally.
There is tenderness to palpation over the lumbar paravertebral musculature.
There is involuntary spasm over the same. She was positive for Sitting
Lasegue, Kemps to the right and Yeoman. Straight leg raise was limited to
40º right and 50º left. Braggard [sic, Bragard's test or sign] was negative.
Deep tendon reflexes were graded at 1/4 bilaterally of the lower extremities.
Circulation was adequate. Manual muscle testing shows the right
dorsiflexors approximately 15º weaker than its opposing members.

"After considering the claimant's age of 63 yrs., education level of 12
grades, and work experience as a nurse's aid[e], her subjective and objective
findings, it is my opinion that the claimant is permanently and totally
disabled from gainful employment."

Based on Dr. McCloud's report, the commission on April 18, 1990
denied permanent total disability compensation. Two months later, claimant

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reapplied for permanent total disability compensation. Dr. DiDomenico's
June 11, 1990 report was submitted in support of the second application. It
read:

"* * * Presently she complains of constant lower back pain which
radiates to her right hip and thigh. She also complains of numbness,
tingling and occassional [sic] buckling of the knee. Her condition is made
worse with bending, lifting, twisting and prolonged sitting and standing.

"Examination: Examination of lumbar spine reveals a loss of the
normal lumbar lordosis. She ambulates with no significant abnormalities,
but has difficulty heel and toe walking. Lumbar range of motion shows
flexion 45º and extension 20º. She is able to laterally flex to the left 15°
and 10º to the right. She is able to rotate to the right 25ºand to the left 15º.
There is tenderness to palpation over the lumbosacral region and
lumboparaspinal musculature. Straight leg raise was positive 30ºon the
right and negative at 60º on the left. She was negative for Braggards [sic,
Bragard's]. She was positive for sitting Lase[g]ue on the right and also
Kemps. Manual muscle testing showed the right dorsiflexors graded at 4/5,
all other muscle groups were 5/5. Since re-evaluation to the Wartenburg

5

pinwheel found slight decrease over the S1 dermatome level on the right as
compared to his [sic] opposing the member.

"After considering the patient's age of 63 years[,] education level of
12 and limited work experience as a nurse's aid[e] it is my opinion that the
claimant is permanently and totally disabled from any and all gainful
employment."

Dr. David M. Baroff reported the following, based on a November 29,
1990 examination:

"On physical examination, she * * * walks with a normal gait and
gets up on her heels and toes easily. She can flex forward 50º at the lumbar
spine. Extension and lateral bending are 15 degrees in each direction. She
is not tender and there is no muscle spasm palpated in the lumbar spine.
She has mild right sacroiliac tenderness and mild right sciatic notch
tenderness. The strength in the legs is normal, reflexes are 1+ at the knees,
absent at the ankles, sensation is intact to touch and pin prick. Straight leg
raising does not reproduce leg pain on either side. X-rays of her lumbar
spine demonstrate diffuse osteopenia and degenerative joint disease of the
facets of the lower three motion segments.

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"IMPRESSION

"Chronic lumbar strain with current evidence of degenerative arthritis
of the lumbar spine seen on the x-ray.

"In my opinion, this lady's condition of lumbar strain and sprain is
permanent and does permanently prevent her from returning to her former
position of employment as a nurse's aide. Furthermore, as a result of her
inability to sit or stand for any prolonged period of time, as a result of her
lumbar strain, she is not a candidate for any sustained remunerative
employment. She has little rehabilitative potential at this time and I would
say that her condition is now permanent and total. In my opinion as a result
of her allowance the lumbar strain, this lady has a permanent partial
impairment of 15% of the whole person."

Vocational consultant John Ruth submitted a report that concluded
that claimant's physical condition and "stamina limitations" would limit her
to sedentary employment. He also reported:

"[Claimant's] age (63) would significantly deter an employer from
hiring her. Through approximately 15 years of vocational services to clients
of all ages[,] it has been this evaluator[']s experience that individuals who

7

are in the closely approaching retirement age category do not secure
competitive employment as there is a large supply of younger individuals in
the work force who are more able-bodied, possess equal skills, and will be
around for a longer period of time (to invest in employer[']s training, money
and time into).

"* * *

"* * * Since this individual demonstrated an inability to perform
work for even brief periods of time[,] [in] the positions of overhead,
crouched or standing, it does not appear as though it would be feasible for
this individual to transfer to [other jobs mentioned in the report]. Overall,
this individual[']s age an[d] inability to work in various planes appear to be
major barriers to employment. For this reason, it is this evaluator's opinion
that Ms. Blangero [claimant] would be unable to seek or sustain
remunerative employment at this time."

The commission again denied compensation for permanent total
disability. In a mandamus action brought by claimant, the Court of Appeals
for Franklin County ordered the commission to vacate its order and issue a
new order in compliance with State ex rel. Noll v. Indus. Comm. (1991), 57

8

Ohio St.3d 203, 567 N.E.2d 245. State ex rel. Blangero v. Indus. Comm.
(Sept. 17, 1992), Franklin App. No. 91AP-1427, unreported.

In June 1993, the commission again denied compensation for
permanent total disability, stating:

"The reports of Doctor(s) McCloud, Baroff, DiDomenico, Ruth were
reviewed and evaluated. The order is based particularly upon the reports of
Doctor(s) McCloud, evidence in the file, and/or evidence adduced at the
hearing.

"In reviewing the medical evidence relevant to the instant application,
the Commission finds most persuasive the report of Dr. McCloud as to the
claimant's medical presentation from the allowed conditions in the claim.
This report relates that the claimant's functional limitations preclude all
work activities where repetitive bending and lifting of objects whose weight
exceeds 20 lbs[.] are in[v]olved. This Commission finds this report to relate
that the claimant can perform light duty employment. A review of the
claimant's vocational presentation relates that she is able to perform such
work activity. Noteably [sic], the Commission finds that the claimant's
vocational history as a salesperson, her high school education and her

9

ability to operate her own business relates [sic] that she would be able to
adapt to the duties and demands of light duty employment and any
associated vocational retraining. As such, the Commission finds that the
claimant is capable of engaging in sustained remunerative employment."

Claimant again filed a complaint in mandamus in the Court of
Appeals for Franklin County, alleging that the commission had abused its
discretion in denying permanent total disability compensation. The
appellate court agreed, writing:

"Dr. McCloud's report indicates that Ms. Menold had lost some
flexibility in her back, but nothing else. Dr. Baroff found not only a loss of
lumbar reserve but `mild right sacroiliac tenderness,' `mild right sciatic
notch tenderness,' `diffuse osteopena,' and `degenerative joint disease of the
facets of the lower three motion segments.' The history given by Dr. Baroff
is indicative of nerve root involvement because of claimed intermittent
feelings with numbness in the right thigh. In short, Dr. Baroff found several
relevant medical conditions in 1990 which Dr. McCloud did not find in
1989. Dr. McCloud's report does not constitute `some evidence' as to the
medical conditions which he did not find to be in existence seven months
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before Ms. Menold filed her second application for permanent total
disability compensation.

"The commission cannot rely solely on the report of Dr. McCloud
under the circumstances. In fact, Ms. Menold's work related physical
problems apparently have increased in the intervening time."

The court ordered the commission to vacate its order, reconsider the
application and issue an amended order explaining its consideration of all
pertinent factors pursuant to State ex rel. Stephenson v. Indus. Comm.
(1987), 31 Ohio St.3d 167, 31 OBR 309, 509 N.E.2d 946, and complying
with State ex rel. Noll v. Indus. Comm. (1994), 57 Ohio St.3d 203, 567
N.E.2d 245.

This cause is now before this court upon an appeal as of right.

Green, Haines, Sgambati Murphy & Macala Co., L.P.A., Ronald E.
Slipski and Steven L. Paulson, for appellee.

Betty D. Montgomery, Attorney General, and Philip J. Gauer,
Assistant Attorney General, for appellant.
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PFEIFER, J. We are asked to determine whether Dr. McCloud's report
is "some evidence" supporting the commission's order. For the reasons to
follow, we find that it is.

The commission is exclusively responsible for judging evidentiary
weight and credibility. State ex rel. Burley v. Coil Packing, Inc. (1987), 31
Ohio St.3d 18, 31 OBR 70, 508 N.E.2d 936. Claimant's contention that
McCloud's report is nonprobative simply because it predates the claimed
disability period lacks merit. Certainly, the probative value of a medical
report may be lessened by later changes in the claimant's condition, and the
longer the time between the report and the disability alleged, the more likely
this is to have occurred. Claimant, however, has failed to show that
McCloud's report was no longer probative.

In this case, it must be remembered that claimant first claimed
permanent total disability compensation on December 1, 1989. Permanent
total disability compensation was denied on April 18, 1990 and claimant
reapplied less than two months later. Because of the extremely short time
between denial and reapplication, it is reasonable to say that claimant has
been alleging permanent total disability consistently since December 1,
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1989. In other words, the condition alleged in 1990 was no different from
that alleged in 1989, and McCloud's report preceded claimant's original
application for permanent total disability compensation by only eleven days.
Claimant cannot, therefore, sustain her claim of staleness.

Equally important, the court of appeals never reconciled its
conclusion that Baroff demonstrated a significant physical worsening with
the fact that Baroff's impairment figure was only half of what McCloud had
observed the previous year. This suggests improvement, not decline.
Comparison of other medical evidence reinforces this conclusion. The 1989
and 1990 reports of Dr. DiDomenico -- claimant's own doctor -- are almost
identical. This again negates the suggestion that claimant's condition had
appreciably worsened over the relevant time frame.

The court of appeals found that Dr. Baroff's later report rendered Dr.
McCloud's report no longer probative because Baroff's narrative listed
"several relevant" findings that had arisen since McCloud's examination.
We disagree. Baroff's reference to "diffuse osteopenia" and "degenerative
joint disease" is irrelevant, since the claim is allowed only for a simple
strain/sprain. Moreover, when the two reports are closely compared, they
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are actually very similar. Identical findings include: (1) normal gait; (2)
absence of radiating pain; (3) uniform deep tendon reflexes; (4) no muscle
spasm; (5) limited flexion; (6) normal leg strength; and (7) negative
radicular testing. The only significant differences between the two are Dr.
Baroff's findings of mild sacroiliac tenderness and mild sciatic notch
tenderness. These discrepancies do not support the appellate court's
conclusion that claimant's condition worsened so dramatically between the
time of the Baroff and McCloud exams as to make the latter's report
nonprobative.

Having found that Dr. McCloud's report is "some evidence"
supporting the commission's order, we turn finally to the question of Noll
compliance. In this case, the order's explanation, although brief, adequately
sets forth the reasoning underlying the commission's decision. It indicates
that, based on the medical and other evidence, claimant's physical
restrictions were so insignificant as to allow for reemployment despite an
age and work history that are not necessarily conducive to retraining. Noll
has accordingly been satisfied.

We therefore reverse the judgment of the court of appeals.
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Judgment reversed.

MOYER, C.J., RESNICK, COOK and STRATTON, JJ., concur

DOUGLAS, J., dissents.
F.E. SWEENEY, J., dissents and would affirm the judgment of the court
of appeals.

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