31tt the 6upremce Court of OYjio

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1 31tt the 6upremce Court of OYjio,M41 STATE OF OHIO, ex rel. PACKAGING CORPORATION OF AMERICA, vs. Relator-Appellant, INDUSTRIAL COMMISSION OF OHIO, et al., Case No On Appeal from the Franklin County Court of Appeals, Tenth Appellate District Court of Appeals Case No. 1 1AP-273 Respondents-Appellees. MERIT BRIEF OF APPELLEE, INDUSTRIAL COMMISSION OF OHIO ROBERT M. ROBENALT ( ) MEGHAN M. MAJERNIK ( ) Ice Miller, LLP 250 West Street, 7th Floor Columbus, Ohio (614) (614) Fax Robert.Robenalt@IceMil ler.com Counsel for Appellant, Packaging Corporation of America MICHAEL DEWINE Ohio Attorney General REMA A. INA ( ) Assistant Attorney General 150 East Gay Street, 22nd Floor Columbus, Ohio (614) (614) Fax Rema.Ina@OhioAttomeyGeneral.gov Counsel for Respondent, Industrial Commission of Ohio MAR C,LhKK $3^ COURT COUR"B OF OHIO THOMAS R. PITTS ( ) Stocker Pitts Co., LPA 159 South Main Street, Suite 400 Akron, Ohio (330) (330) Fax TPitts@wkcomp.com Counsel for Respondent, Gregory Murphy

2 TABLE OF CONTENTS TABLE OF AUTHORITIES ii INTRODUCTION STATEMENT OF THE CASE AND FACTS....1 ARGUMENT...4 Appellee's Proposition of Law :...5 The Industrial Commission is the expert of weight and credibility of evidence and absent an absuse of discretion, its decisions will not be disturbed in mandamus. A. The commission found that Murphy's symptoms had increased, based on his allowed conditions, and therefore, he had not reached maximum medical improvement ("MMI") B. The commission found that the medical evidence submitted by Murphy does establish the disability period is related to the allowed cervical conditions...6 C. Dr. Noel's report was some evidence on which the commission could rely....7 CONCLUSION...8 CERTIFICATE OF SERVICE i

3 TABLE OF AUTHORITIES Page(s) CASES State ex rel. Athey v. Indus. Comm. 89 Ohio St.3d 473 (2000)...7 State ex rel. Bing v. Indus. Comm. 61 Ohio St.3d 424 (1991)...5 State ex rel. Commercial Lovelace Motor Freight v. Lancaster 22 Ohio St.3d 191 (1986)...4 State ex rel. Eberhardt v. Flxible Corp. 70 Ohio St.3d 649 (1994)...5 State ex rel. Elliott v. Indus. Comm. 26 Ohio St.3d 76 (1986)...4 State ex rel. Josephson v. Indus. Comm. 101 Ohio St.3d 195 (2004)...5 State ex rel. LTV Steel Co. v. Indus. Comm. 88 Ohio St.3d 284 (2000)...4 State ex rel. Pressley v. Indus. Comm. 11 Ohio St.2d 141 (1967)...4 State ex rel. Rodriguez v. Indus. Comm. 67 Ohio St.3d 210 (1993)...6 State ex rel. Stephenson v. Indus. Comm. 31 Ohio St.3d 167 (1987)...4 STATUTES Ohio Adm.Code (A)(1)...5 ii

4 INTRODUCTION This case is an appeal as of right from a mandamus action originating in the Tenth District Court of Appeals and involves a workers' compensation issue. The appellate court denied the requested writ and found that Appellee, Industrial Commission of Ohio ("commission"), acted within its discretion when it granted temporary total disability ("TTD") compensation to Appellee, Gregory Murphy ("Murphy"). Appellant, Packaging Corporation of America ("PCA"), contends that the commission abused its discretion in granting Murphy his request for TTD compensation and repeats the same arguments that were rejected by the commission and the appellate court. The commission submits that it relied upon evidence of record in finding that Murphy is entitled to TTD compensation. Thus, the commission asks this Court to affirm the appellate court's decision to deny the requested writ. STATEMENT OF THE CASE AND FACTS Murphy was first injured in the course and scope of employment at PCA in April 2001 when corrugated stock fell onto his head. See Supplement at page 77 (hereinafter "S. _"). He filed a workers' compensation claim and the claim was allowed for the conditions of "cervical sprain, aggravation of pre-existing cervical spondylosis at C5-C7, and aggravation of cervical spine disc hemiations at C5-6 and C6-7." (S. 37). Murphy was off work for a limited time from this injury and returned to work at PCA until he was injured in September In September 2006, Murphy fell while stepping over a machine frame at PCA. (S. 77). He filed a workers' compensation claim that has been allowed for "strain right shoulder, strain right elbow, lumber strain, right rotator cuff tear, right biceps tendonitis, and right shoulder impingement tendonitis." (S. 53). Murphy had a successful right shoulder surgery in this claim 1

5 performed by Curtis Noel, M.D., in October (S. 68). Murphy received TTD compensation from October 5, 2007, until February 9, 2010, in the 2006 claim. (S. 3). During the time that Murphy was receiving TTD compensation in his 2006 claim, Norman Lefkovitz, M.D., his treating neurologist, found him to be TTD due to his allowed cervical conditions in the 2001 claim. Specifically, Dr. Lefkovitz submitted C-84 forms ("C- 84s") requesting TTD compensation from June 19, 2007, through July 2, 2007, and from October 5, 2007, until April 21, 2008, due to his cervical conditions. (S. 170). In these requests, Dr. Lefkovitz states that Murphy has decreased range in motion in his cervical spine and neck pain. (S. 106, 108, 110, 161). A staff hearing officer ("SHO") of the commission denied this request, relying on Dr. Kepple's January 2008 report, which found that Murphy's right upper extremity complaints at that time were due to the pathology of his right shoulder and were not the result of the allowed conditions in his 2001 claim. (S. 64). Murphy also suffered a third injury in June 2009 when he was thrown onto the hood of a car from a motorcycle and suffered an injury to his right hand. (S. 53). An SHO of the commission granted Murphy's cervical treatment requests in January 2010, relying, in part, on Murphy's testimony that the accident did not involve his cervical area. (S. 57). In February 2010, Murphy saw Dr. Noel, who found that Murphy's shoulder had healed. (S. 38). Dr. Noel also found that Murphy noticed that increasing weights in therapy for his shoulder made his neck worse. Id. Murphy also continued to treat with Dr. Lefkovitz. In December 2009, Dr. Lefkovitz opined that Murphy "has had a lot of increasing neck pain and spasm with radiation of pain into his right upper extremity." (S. 157). Dr. Lefkovitz also noted that Murphy has had gaps in treatment because "the patient's self-insured company has denied reimbursement for his care 2

6 including office visits and the patient has been simply `having to live with his pain'." (S. 157). In May of 2010, Dr. Lefkovitz noted that Murphy complained of neck pain and had cervical spine muscle tenderness to palpitation. (S. 98). In June 2010, Dr. Lefkovitz noted that Murphy had neck pain before his motorcycle accident and there was no significant change in the neck complaints after the accident. (S. 156). In May 2010, Murphy filed the C-86 Motion at issue here, requesting TTD compensation from February 10, 2010, and continuing forward. (S. 159). Dr. Lefkovitz supported the TTD request, basing his opinion on Murphy's decrease in cervical range of motion, cervical tenderness and tightening, and "persistent intractable severe neck pain." Id. He states that Murphy's neck pain "is a direct and approximate result of his April 24, 2001 work-related occurrence." (S. 156). A District Hearing Officer ("DHO") of the commission denied Murphy's request for TTD benefits. (S ). On Murphy's appeal, an SHO vacated the DHO order and granted Murphy TTD benefits from February 10, 2010, through September 8, 2010, and to continue upon submission of additional medical evidence. (S ). The SHO relied on the C-84 reports of Dr. Lefkovitz and the June 2010 narrative report of Dr. Lefkovitz. The SHO also relied on: [T]he 02/03/2010 report of Dr. Noel contained in claim number Dr. Noel, who performed the surgery on the Injured Worker's right shoulder in that claim and who disabled the Injured Worker as a result of the same stated that the Injured Worker's shoulder is well healed and that the Injured Worker needs to hold off on any therapy that he is doing with his shoulder as the same is just aggravating the Injured Worker's neck issues. (S. 38). PCA requested a third level hearing and the commission granted the hearing. However, after the hearing, the commission ultimately recognized that it did not have jurisdiction and denied the appeal. (S. 1-2). Soon after, PCA commenced this action in mandamus, challenging 3

7 the holding of the commission and seeking a writ to deny Murphy TTD benefits. The appellate court denied PCA's request for a writ and found that the commission did not abuse its discretion. ARGUMENT A writ of mandamus is an extraordinary remedy issued only where a legal right to certain action exists. For a court to issue a writ of mandamus, the relator must demonstrate (1) a clear legal right to the relief sought, (2) that the respondent had a clear legal duty to provide such relief, and (3) that relator had no other adequate legal remedy. State ex rel. Pressley v. Indus. Comm., 11 Ohio St.2d 141 (1967). Regarding the first two elements, PCA must establish that the commission acted contrary to law or committed a gross abuse of discretion by issuing an order not supported by any evidence in the administrative record. "The extraordinary writ of mandamus may only issue if relator has demonstrated a clear legal right to the relief sought. * * * Such demonstration is predicated upon an abuse of discretion by the Industrial Commission which, in turn, may be established only if the record is devoid of some evidence to support the commission's order." State ex rel. Elliott v. Indus. Comm., 26 Ohio St.3d 76, (1986). Abuse of discretion implies not merely error of judgment, but perversity of will, passion, prejudice, partiality or moral delinquency. State ex rel. Commercial Lovelace Motor Freight v. Lancaster, 22 Ohio St.3d 191, 193 (1986). This Court has stated that the commission's findings are to be given great deference: It is basic law, without need of citation, that the Industrial Commission has considerable discretion in the performance of its duties; that its actions are presumed to be valid and performed in good faith and judgment, unless shown to be otherwise; and that so long as there is some evidence in the file to support its findings and orders, this court will not overturn such. State ex rel. Stephenson v. Indus. Comm., 31 Ohio St.3d 167, 170 (1987). "The commission is the exclusive evaluator of weight and credibility, and as long as some evidence supports the commission's decision, reviewing courts must defer to its judgment." State ex rel. LTV Steel Co. 4

8 v. Indus. Comm., 88 Ohio St.3d 284, 287 (2000). The commission's order here justifiably granted TTD benefits to Murphy, explained its reasoning, and stated the evidence relied on in reaching its conclusion. Its decision should not be disturbed. Appellee's Proposition of Law: The Industrial Commission is the expert of weight and credibility of evidence and, absent an absuse of discretion, its decisions will not be disturbed in mandamus. A. The commission found that Murphy's symptoms had increased, based on his allowed conditions and, therefore, he had not reached maximum medical improvement ("MMI"). "The SHO expressly relied on the C-84s and June 10, 2010 narrative report completed by Norman Lefkovits, M.D., who rejected the opinion of Elizabeth Mease, M.D., that claimant had reached MMI and indicated that claimant was receiving ongoing treatment." (Appellate Court Decision at p. 2). The commission properly found that Murphy's cervical conditions have been aggravated by his shoulder physical therapy and, thus, he has not reached MMI. MMI is defined as a "treatment plateau (static or well-stabilized) at which no fundamental functional or physiological change can be expected within a reasonable medical probability in spite of continuing medical or rehabilitative procedures. A claimant may need supportive treatment to maintain this level." Ohio Adm.Code (A)(1). This Court equates MMI "with the concept of permanence." State ex rel. Eberhardt v. Flxible Corp., 70 Ohio St.3d 649, 653 (1994). State ex rel. Bing v. Indus. Comm., 61 Ohio St.3d 424, 427 (1991), held that a finding of MMI and termination of TTD does not preclude reinstatement of TTD compensation if the allowed condition again becomes temporarily and totally disabling. "[T]he only new and changed circumstance sufficient to re-entitle a worker to TTC is the worsening of the claimant's allowed conditions accompanied by a prognosis that the worsening is only temporary." State ex rel. Josephson v. Indus. Comm., 101 Ohio St.3d 195, 198 (2004). 5

9 Here, the commission relied on the opinions of Dr. Lefkovitz and Dr. Noel that Murphy's condition had worsened, and on Dr. Lefkovitz's assertion that Murphy was temporary and totally disabled. Though the commission did not specifically state that Murphy was not MMI, a finding that the claimant is not at a stable treatment plateau makes clear that Murphy was not MMI. A remand over this issue would be in vain and would only require the commission to make explicit in its order what is already implicit; a finding that Murphy's cervical conditions had worsened through therapy for his right shoulder means that his cervical conditions were not MMI. This Court has held that it will not issue a writ of mandamus to return a cause to the commission when that return would result in "an unnecessarily duplicative act under" the facts of the case. State ex rel. Rodriguez v. Indus. Comm., 67 Ohio St.3d 210 (1993). B. The commission found that the medical evidence submitted by Murphy does establish the disability period is related to the allowed cervical conditions. The commission permissibly relied on Dr. Lefkovitz's C-84's and narrative reports, which relate Murphy's increase in cervical pain to his allowed cervical conditions. The commission had before it the IME report of Elizabeth Mease, M.D. from May 2010 and the Addendum report of Dr. Mease, which discussed Murphy's MRI showing cervical stenosis. Notably, Dr. Mease does not find Murphy has any disability related to his stenosis at all. In fact, Dr. Mease stated that "it is my opinion that his disability is not likely related to any particular medical condition". (S. 76). Thus, the commission did not ignore evidence that Murphy's disability is related to his stenosis, as no evidence of the sort was actually presented. The commission relied on Dr. Lefkovitz's opinion on the C-84's that he signed, relating Murphy's TTD to his allowed cervical conditions. Dr. Lefkovitz signed the March 2010 MRI report and was clearly aware that it documented stenosis. (S. 183). However, in Dr. Lefkovitz's medical opinion, Murphy's symptoms were related to his allowed cervical conditions, not his cervical stenosis. 6

10 This Court has clearly stated, in State ex rel. Athey v. Indus. Comm., 89 Ohio St.3d 473, 475 (2000), that "the commission is the exclusive evaluator of weight and credibility" of the evidence presented to it. Here, the commission considered evidence which reported Murphy's stenosis and chose to rely on Dr. Lefkovitz's report, which related the increase in neck pain to Murphy's allowed conditions. In addition, PCA improperly asserts that any medical evidence exists which relates Murphy's disability to his cervical stenosis. This Court should reject PCA's attempt to have it re-weigh the evidence that was properly before the commission. The commission relied on Dr. Lefkovitz's opinion and his opinion is some evidence on which the commission may rely. C. Dr. Noel's rely. report was some evidence on which the commission could The commission properly relied on the February 3, 2010 report of Dr. Noel. Dr. Noel is an orthopedic surgeon who has treated Murphy in his 2006 workers' compensation claim. Dr. Noel actually examined Murphy. In both the DHO and SHO hearings on Murphy's TTD request, Murphy's 2006 claim was listed as a reference claim. (S. 40, 45). A claim is listed as a reference claim when evidence or information in that claim may be relevant to the issue at hearing. Here, the right shoulder and cervical conditions were closely linked and the commission properly listed Murphy's 2006 claim as a reference claim. In his February 2010 note, Dr. Noel stated that Murphy's neck pain became worse with therapy. He recommended that Murphy "hold off on any therapy that he is doing with his shoulder, as this other thing is just aggravating the neck issue." Id. Dr. Noel also stated that "[w]e need to get the neck issue solved with worker's [sic] comp so he can get appropriate treatment, including therapy for his neck, possible selective Cortisone injections." PCA's argument that Dr. Noel's area of expertise, orthopedic surgery, only renders him capable of diagnosing Murphy's shoulder injury and 7

11 prevents him from offering an opinion on Murphy's neck condition is absurd. An orthopedic surgeon is clearly capable of offering an opinion on cervical conditions. Dr. Noel's report was properly considered by the commission as a reference claim and is some evidence on which the commission may rely. However, even if Dr. Noel's diagnosis is not some evidence for the commission to rely, Dr. Lefkovitz's medical records clearly were. Dr. Noel's report certainly can be relied on as evidence that Murphy has suffered an increase in his cervical symptoms after performing physical therapy. The commission clearly had some evidence to find that Murphy's allowed cervical conditions had been aggravated by his physical therapy, not the motorcycle accident of 2009, and the commission permissibly granted Murphy's request for TTD compensation. As to Appellant's Third Proposition of Law, the authorization of conservation treatment did not automatically render Murphy TTD. (See Appellant's Brief at p. 11). The commission made no such finding. The commission permissibly found Murphy to be TTD based on the office notes and report of Dr. Lefkovitz, the January 11, 2010 SHO order and the February 3, 2010 report of Dr. Noel. CONCLUSION The commission had evidence to support its decision to deny PTD compensation. Specifically, the commission determined that Murphy was TTD based on Dr. Lefkovitz's opinion. This Court should reject PCA's attempt to have it re-weigh the evidence that was properly before the commission. Accordingly, the commission respectfully requests that the Court uphold the appellate court's decision denying the writ of mandamus. 8

12 Respectfully submitted, MICHAEL DEWINE ( ) Ohio Attorney General RE A A. INA ( ) Assistant Attorney General Workers' Compensation Section 150 East Gay Street, 22nd Floor Columbus, Ohio (614) Tel. (614) Fax Rema.Ina@OhioAttomeyGeneral.gov Counsel for Appellee, Industrial Commission of Ohio 9

13 CERTIFICATE OF SERVICE This is to certify that a copy of the foregoing Merit Brief of Appellee, Industrial Commission of Ohio, was sent by regular U.S. mail this C day of March 2013 to: Robert M. Robenalt Ice Miller, LLP 250 West Street, 7th Floor Columbus, Ohio Counsel for Appellant, Packaging Corporation of America Thomas Pitts Stocker Pitts Co., LPA 159 South Main Street, Suite 400 Akron, Ohio Counsel for Appellee, Gregory Murphy REMA A. INA ( ) Assistant Attorney General 10