State ex rel. Vance v. Marikis - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

	ROMINGER LEGAL
		Ohio Court Cases and Opinions - Ohio Legal Research
					Need Legal Help?
					Need Legal Help?
LEGAL RESEARCH CENTER
LEGAL RESEARCH CENTER			LEGAL HEADLINES - CASE LAW - LEGAL FORMS	NOT FINDING WHAT YOU NEED? -RESEARCH

This court case was taken from the web sites of the Ohio Courts. Search our site for more cases - CLICK HERE

LEGAL RESEARCH

COURT REPORTERS

PRIVATE INVESTIGATORS

PROCESS SERVERS

DOCUMENT RETRIEVERS

EXPERT WITNESSES

Find a Private Investigator

Find an Expert Witness

Find a Process Server

Case Law - save on Lexis / WestLaw.

Legal News - Legal Headlines

[Cite as State ex rel. Vance v. Marikis, 86 Ohio St.3d 305, 1999-Ohio-104.]

THE STATE EX REL. VANCE, APPELLANT, v. MARIKIS; INDUSTRIAL COMMISSION OF
OHIO ET AL., APPELLEES.
[Cite as State ex rel. Vance v. Marikis (1999), 86 Ohio St.3d 305.]
Workers' compensation -- Industrial Commission does not abuse its discretion in
terminating temporary total disability compensation when its decision is
supported by "some evidence" -- Appropriate date on which to terminate
disputed temporary total disability compensation on the basis of maximum
medical improvement.
(Nos. 96-18 and 96-472 -- Submitted July 28, 1999 -- Decided September 1,
1999.)
APPEALS from the Court of Appeals for Franklin County, No. 94APD12-1784.
Appellant-claimant
Renotta Vance's 1988 workers' compensation claim was
originally allowed for "pulled tendons-muscles in entire back, chip[ped] bone side
of right foot." She began receiving temporary total disability compensation
("TTD") shortly thereafter.

In 1991, Dr. Kenneth H. Doolittle II diagnosed "chronic back pain
syndrome." He felt that an MRI was in order, and stated that if the MRI was
indeed normal, claimant was capable of returning to her former position of
employment.

On September 17, 1992, Dr. S.S. Purewal examined claimant. Regarding
claimant's complaints, he reported:

"Currently she complains of intermittent soreness between her shoulder
blades which she states is worse in the morning when she wakes up. Occasionally
she has lower back pain. There is no pain in her upper extremities or her lower
extremities. Occasionally she feels some aching at the right foot in cold, damp
weather, but there is no instability or giving out of the right ankle and foot. * * *

When questioned about her ability to return to work as a secretary and why she has
not done so over the last three years, she stated that she is willing to try, but her
physician, Dr. [William C.] Manthey, has stated that she is not ready. She was
unable to explain that statement or explain and justify why she could not return to
work as a secretary."

Dr. Purewal's examination revealed normal findings and no objective
symptomology. He concluded:

"This patient has mild subjective complaints of pain in the thoracic spine
region with minimal degenerative changes in her discs as evidenced by the MRI.
There is no reason why she cannot or could not have returned to her job as a
secretary almost a couple of years ago[,] and the only explanation she has given to
me is that her doctor stated that she was not ready.

"In my opinion, she is able to return to her former position of employment as
a secretary or any other employment of that nature. She has reached maximum
medical recovery and is not temporarily and totally impaired.

"She has received clearly excessive physical therapy treatments without
justification and, in my opinion, no specific treatment is indicated other than her
taking anti-inflammatory medications if and when needed based strictly on her
subjective complaints."

That December, claimant moved appellee Bureau of Workers'
Compensation for the additional allowance of several conditions. She also sought
a home whirlpool, heated mattress pad and orthopedic mattress, as well as "back
pay for TTD compensation not received from 12-19-88 to present."

On November 17, 1993, appellee Bureau of Workers' Compensation denied
further TTD as of that date, based on a finding of maximum medical improvement
("MMI"). Claimant's appeal to a commission district hearing officer ("DHO")
resulted in the additional allowance of "thoracic sprain [and] myofa[s]cial pain
2

syndrome." The DHO vacated the bureau's termination of TTD and issued her
own order to the same effect, again terminating TTD as of November 17, 1993,
based on MMI:

"This finding is based on the 9/17/92 state specialist report of Dr. Purewal.
[The] District Hearing Officer further finds that the additional allowances made
herein do not change the status of claimant's disability as Dr. Purewal included
claimant's thoracic area in his exam, and as the diagnosis of myofa[s]cial pain
syndrome appears consistent with his conclusion that claimant's pain complaints
are subjective in nature."

A staff hearing officer affirmed, writing:

"The newly allowed conditions of myofascial pain syndrome and thoracic
sprain do not change the claimant's condition of permanency and maximum
medical improvement. His [sic] condition is still permanent and [s]he has received
maximum medical improvement according to the medical evidence from Dr.
Purewal's report. This claim has been previously allowed for the `entire back' and
the treatment up to the current time has included these additionally allowed
conditions."
Reconsideration
was
denied.

Claimant filed a complaint in mandamus in the Court of Appeals for
Franklin County, alleging that the commission had abused its discretion in
terminating TTD. The court disagreed, after finding the commission's decision to
be supported by "some evidence." Although the Industrial Commission had
terminated TTD as of November 17, 1993, the court also stated that the
commission "was within its discretion to terminate the temporary total disability
compensation effective the date of Dr. Purewal's examination and to declare an
overpayment for the funds received thereafter." Accordingly, the writ was denied.
The court issued a judgment entry and a later corrected judgment entry. Claimant
3

appealed from both, and the appeals have been consolidated.

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

Reminger & Reminger Co., L.P.A., and William R. Thomas, for appellant.

Betty D. Montgomery, Attorney General, Dennis L. Hufstader and William
A. Thorman III, Assistant Attorneys General, for appellees.

Stewart Jaffy & Associates Co., L.P.A., Stewart R. Jaffy and Marc J. Jaffy,
urging reversal for amicus curiae, Ohio AFL-CIO.

Scott, Scriven & Wahoff, William J. Wahoff, Richard Goldberg and Timothy
E. Cowans, urging affirmance for amicus curiae, Ohio Council of Retail
Merchants.

Bricker & Eckler and Charles D. Smith, urging affirmance for amici curiae,
Ohio Chapter of the National Federation of Independent Business and Ohio Farm
Bureau Federation.

Vorys, Sater, Seymour & Pease, Robert A. Minor and Robin R. Obetz, urging
affirmance for amici curiae, Ohio Manufacturers' Association and Ohio Self-
Insurers' Association.

Millisor & Nobil and Preston J. Garvin, urging affirmance for amicus
curiae, Ohio Chamber of Commerce.
__________________

Per Curiam. Two issues are presented: (1) Does "some evidence" support
TTD termination? and (2) What is the proper date of termination? As to the former,
we find that Dr. Purewal's report is "some evidence." Claimant attacks the report,
asserting that it was invalidated by the later allowance of "thoracic sprain and
myofascial pain syndrome." Dr. Purewal, however, examined claimant's entire
back, including the thoracic region, and commented on the complaints of pain that
presumably prompted claimant to seek recognition of thoracic sprain and
4

myofascial pain syndrome. This distinguishes this case from State ex rel.
Richardson v. Quarto Mining Co. (1995), 73 Ohio St.3d 358, 652 N.E.2d 1027.
In
Richardson, the examining physician considered only the allowed
condition of "lumbosacral strain" in assessing MMI. His examination did not
encompass the other more serious allowed condition of "central disc herniation at
L4-5 and L5-S1," causing us to declare that his report was not "some evidence"
supporting TTD denial. In this case, claimant's additional conditions were thoracic
sprain and myofascial pain syndrome, the manifestation of which was covered by
Dr. Purewal's examination. Given the nature of claimant's additionally allowed
conditions, we find that the commission did not abuse its discretion in finding that
Dr. Purewal in effect considered all allowed conditions.

Turning to the remaining question, we find that it has already been answered
by State ex rel. Russell v. Indus. Comm. (1998), 82 Ohio St.3d 516, 696 N.E.2d
1069, at syllabus:

"The appropriate date on which to terminate disputed temporary total
disability compensation on the basis of maximum medical improvement is the date
of the termination hearing, and the commission may not declare an overpayment
for payments received by the claimant before that date."

Accordingly, we affirm that part of the court of appeals' judgment that finds
"some evidence" supporting the commission's termination of TTD. The balance
of the judgment is reversed.
Judgment affirmed in part
and reversed in part.

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

DOUGLAS, J., dissents.
F.E. SWEENEY, J., dissents and would reverse the judgment of the court of
5