2013 Annual Convention. Workers Compensation Update

Transcription

1 2013 Annual Convention Workers Compensation Update Workers Compensation Committee 3.0 General CLE Hours May 8-10, 2013 Cleveland

2 CONTRIBUTORS Todd A. Bergert Attorney at Law Canton, Ohio Mr. Bergert received his BS from The University of Akron and his JD from The University of Akron School of Law. In 1993, he established his own private practice and has argued a case in front of the Supreme Court of Ohio. He is currently working on behalf of injured workers in workers compensation cases. Sarah R. Grinder Stocker Pitts Co. LPA Akron, Ohio Ms. Grinder received her BA from Mount Union College and her law degree from The Ohio State University Michael E. Moritz College of Law. Her professional memberships include the Ohio Academy of Trial Lawyers and Akron Bar Association. Ms. Grinder attends many Industrial Commission hearings on behalf of her firm and its clients. She uses her knowledge, high energy, and enthusiasm to excel in the field of workers compensation law, helping ordinary people in Northeast Ohio obtain fair benefits for their injuries or disabilities. For additional information, please visit Dr. David P. Leone Western Reserve Spine and Pain Institute Kent, Ohio Dr. Leone graduated with his Doctorate of Chiropractic in In 1990, he founded one of the first multispecialty pain practices in the county. This practice incorporated MDs, DCs, DOs and PTs all at one location. More than 20 years later, his Institute continues to be the region s leading pain center. Dr. Leone is a fellow of Chiropractic Orthopedics. He is one of the first chiropractors to be board certified in acupuncture in Ohio. Dr. Leone is one of the only Doctor of Chiropractic certified in spinal decompression in the state. He also is an avid fitness and wellness enthusiast and has numerous post-doctoral training in nutrition and developing the program for the practice. Dr. Leone is a frequent lecturer to the nurse practitioner program at Kent State University and holds the position of adjunct professor. He has served on numerous boards and committees in Portage County and Kent since beginning practice. For additional information, please visit Dr. Bina Mehta Western Reserve Spine and Pain Institute Kent, Ohio Dr. Mehta graduated from Northeastern Ohio University College of Medicine and completed her Physical Medicine and Rehabilitation residency at MetroHealth Medical Center/Case Western Reserve in Cleveland where she served as chief resident. Her professional memberships include the American Academy of Physical Medicine and Rehabilitation, The American Association of Neuromuscular and Electrodiagnostic Medicine, and American Medical Association. Dr. Mehta has been with her organization since 1998, and has helped to make WRSPI the premier non-operative spine and musculoskeletal center in the area. As a board certified physiatrist, she works hard to restore function and improve quality of life for patients in pain. Dr. Mehta performs electrodiagnosing testing, joint, and soft tissues injections (trigger point injections) and is skilled at diagnosing and treating musculoskeletal injuries. She is on the Disability Evaluators Panel for the Ohio Bureau of Workers Compensation, and does Independent Medical Examinations and disability examinations. For additional information, please visit

3 Thomas R. Pitts Stocker Pitts Co. LPA Akron, Ohio Mr. Pitts received his BA from The University of Akron and his JD from The University of Akron School of Law. His professional memberships include the Summit County Association for Justice (Immediate Past President), Ohio Association for Justice (Workers Compensation Committee), American Association for Justice (Workers Compensation Committee; Lawyers Assistance Committee), Ohio State Bar Association (Workers Compensation Committee), and the Akron Bar Association (Chairperson, Workers Compensation Committee; Lawyers Assistance Committee). For more than 20 years, Mr. Pitts has limited his practice to the representation of injured workers in Ohio workers compensation and Social Security disability claims. For additional information, please visit John R. Smart Ohio Attorney General s Office Columbus, Ohio

4 Workers Compensation Update Session # 807 Chapter 1 Acute and Long-Term Care in the Pain Management Setting Dr. Bina Mehta Acute and Long-Term Care in the Pain Management Setting PowerPoint Presentation Chapter 2 Complementary and Alternative Medicine Dr. David P. Leone Complementary and Alternative Medicine PowerPoint Presentation Chapter 3 Concurrent Compensation Todd A. Bergert I. Overview II. Statutory PTD and Subsequent TT III. TT and Unemployment Compensation IV. Living Maintenance and PPD V. PPD and PTD VI. Miscellaneous Issues Chapter 4 Dealing with Rejection: Practice Pointers in a World of State ex rel. Zamora v. Industrial Comm n Sarah R. Grinder Practice Point #1: Objecting to Tentative Orders Granting PTD Two Reasons Practice Point #2: Requesint Bifurcation of DHO and SHO Hearings That Have Been Scheduled Together Practice Point #3: Using the Doctrine of Severability Attachments Industrial Commission Policy Memo G State ex rel. Thirion v. Industrial Comm n State of Ohio ex rel. Fries v. Administrator, Bur. of Workers Comp

5 Acute and Long-Term Care in the Pain Management Setting 1 Dr. Bina Mehta Western Reserve Spine and Pain Institute Kent, Ohio

6 Acute and Long-Term Care 1.1

7 1.2 Workers Compensation Update

8 Acute and Long-Term Care 1.3

9 1.4 Workers Compensation Update

10 Acute and Long-Term Care 1.5

11 1.6 Workers Compensation Update

12 Acute and Long-Term Care 1.7

13 1.8 Workers Compensation Update

14 Acute and Long-Term Care 1.9

15 1.10 Workers Compensation Update

16 Acute and Long-Term Care 1.11

17 1.12 Workers Compensation Update

18 Acute and Long-Term Care 1.13

19 1.14 Workers Compensation Update

20 Acute and Long-Term Care 1.15

21 1.16 Workers Compensation Update

22 Complementary and Alternative Medicine 2 Dr. David P. Leone Western Reserve Spine and Pain Institute Kent, Ohio

23 Complementary and Alternative Medicine 2.1

24 2.2 Workers Compensation Update

25 Complementary and Alternative Medicine 2.3

26 2.4 Workers Compensation Update

27 Complementary and Alternative Medicine 2.5

28 2.6 Workers Compensation Update

29 Complementary and Alternative Medicine 2.7

30 2.8 Workers Compensation Update

31 Complementary and Alternative Medicine 2.9

32 2.10 Workers Compensation Update

33 Complementary and Alternative Medicine 2.11

34 2.12 Workers Compensation Update

35 Complementary and Alternative Medicine 2.13

36 2.14 Workers Compensation Update

37 Complementary and Alternative Medicine 2.15

38 2.16 Workers Compensation Update

39 Complementary and Alternative Medicine 2.17

40 2.18 Workers Compensation Update

41 Complementary and Alternative Medicine 2.19

42 2.20 Workers Compensation Update

43 Complementary and Alternative Medicine 2.21

44 Concurrent Compensation 3 Todd A. Bergert Attorney at Law Canton, Ohio I. OVERVIEW See BWC Rate Chart. II. STATUTORY PTD AND SUBSEQUENT TT See State ex rel. Bennett v. Industrial Comm n (2008), No. 07AP-481 (10 th Dist.). III. TT AND UNEMPLOYMENT COMPENSATION A. State of Ohio unemployment compensation see Ohio Rev. Code (A). B. Federal unemployment compensation see State of Ohio ex rel. Timken Co. v. Industrial Comm n & Tyson (2012), No. 11AP-1095 (10 th Dist.). IV. LIVING MAINTENANCE AND PPD Filing for same versus payment over same period. V. PPD AND PTD A. PPD and PTD in same claim for same conditions over some period of time see State ex rel. Murray v. Industrial Comm n (1992), 63 Ohio St. 3d 473, and State ex rel. Hoskins v. Industrial Comm n (1999), 87 Ohio St. 3d PTD and then PPD Murray. 2. PPD and the PTD Hoskins. 3. PPD and then PTD, but not over the same period of time. Concurrent Compensation 3.1

45 B. PPD and PTD in different claims for different conditions State ex rel. Consolidation Coal Co. v. Industrial Comm n (1980), 62 Ohio St. 2d 147. C. PTD and subsequent allowance. D. PPD for physical condition or psychological condition when PTD is granted based only upon the other differing opinions among hearing officers. VI. MISCELLANEOUS ISSUES 3.2 Workers Compensation Update

46 Dealing with Rejection: Practice Pointers in a World of State ex rel. Zamora v. Industrial Comm n 4 Sarah R. Grinder Stocker Pitts Co. LPA Akron, Ohio What exactly does Zamora say?: [I]t would be inconsistent to permit the Commission to reject [a] report at one level, for whatever reason, and rely on it at another. A. It does not preclude reliance on reports by an author simply because one of the author s reports has been rejected. State ex rel. Value City Dep t Stores v. Industrial Comm n (2002), 97 Ohio St. 3d 187. B. Zamora does not apply simply to reports, but more to the opinions expressed in reports once an opinion has been rejected, that same opinion cannot be regurgitated in a new report to circumvent Zamora. State ex rel. Crocker v. Industrial Comm n (2006), 111 Ohio St. 3d 202. C. In all orders granting or denying benefits, the Commission must specifically state what evidence has been relied upon and briefly explain the reasoning for its decision. State ex rel. Noll v. Industrial Comm n (1991), 57 Ohio St. 3d 203. D. The hearing officer is never required to explain why particular evidence is found less persuasive, not relied upon, and implicitly rejected. Dealing with Rejection 4.1

47 PRACTICE POINT #1: OBJECTING TO TENTATIVE ORDERS GRANTING PTD TWO REASONS A. Industrial Commission Policy Memo G3 may not work in practice anymore since State ex rel. Thirion v. Industrial Comm n, 2011-Ohio Court of appeals determined that a request for adjustment of PTD start date is a request for the Commission to exercise its continuing jurisdiction 2. As an exercise of continuing jurisdiction, the PTD start date can be adjusted only if one of the five prerequisites have been met: (1) mistake of law; (2) mistake of fact; (3) fraud; (4) new and changed circumstances; or (5) error by an inferior tribunal. B. Some staff hearing officers, when hearing a Memo G3 request for readjustment of a PTD start date, are denying the request for readjustment based on Zamora. PRACTICE POINT #2: REQUESTING BIFURCATION OF DHO AND SHO HEARINGS THAT HAVE BEEN SCHEDULED TOGETHER A. E.g., a hearing officer sitting as a SHO on an issue of MMI but sitting as a DHO on an issue of treatment. B. Hearing officers may believe their hands are tied on one issue or the other if the hearings are conducted on the same day at the same hour. If relying on Dr. X s opinion of MMI, a hearing officer may believe Zamora prevents him or her from relying on Dr. Y for the treatment issue. C. Request a continuance, which may be denied, so.... PRACTICE POINT #3: USING THE DOCTRINE OF SEVERABILITY A. This concept that was hinted at in Verbanek, that some elements of reports may somehow be preservable under an exception to Zamora. State ex rel. Verbanek v. Industrial Comm n (1995), 73 Ohio St. 3d 562. B. The Concept became much firmer in Fries: medical reports are often comprised of discrete parts... a rejection of a portion of a medical report does not necessarily dictate that the entire report be removed from consideration. State ex rel. Fries v. Industrial Comm n, 2002-Ohio Workers Compensation Update

48 Attachments Dealing with Rejection 4.3

49 4.4 Workers Compensation Update

50 Dealing with Rejection 4.5

51 4.6 Workers Compensation Update

52 2011-Ohio-6463 State ex rel. William E. Thirion, Relator, v. Industrial Commission of Ohio and Trumbull County, Respondents. No. 10AP-282 Court of Appeals of Ohio, Tenth District December 15, 2011 IN MANDAMUS ON OBJECTIONS TO THE MAGISTRATE S DECISION Urban Co., LP.A., and Anthony P. Christine, for relator. Michael DeWine, Attorney General, and Kevin J. Reis, for respondent Industrial Commission of Ohio. DECISION CONNOR, J. { 1} Relator, William E. Thirion, filed this original action seeking a writ of mandamus ordering respondent, Industrial Commission of Ohio ( commission ), to vacate its order, which denied his request for an adjustment of the start date for his award of permanent total disability ( PTD ) compensation, and to enter an order changing the start date to November 30, { 2} This court referred the matter to a magistrate pursuant to Civ.R. 53(C) and Loc.R. 12(M) of the Tenth District Court of Appeals. The parties stipulated the pertinent evidence and filed briefs. The magistrate rendered a decision which is appended hereto. In the appended decision, the magistrate issued findings of fact and conclusions of law before ultimately recommending that this court deny relator s request for a writ of mandamus. In support, the magistrate cited two legal consequences resulting from relator s failure to file objections to the tentative order issued by the commission on October 27, First, because relator failed to file objections, the tentative order became final and could only be reopened by the commission s exercise of continuing jurisdiction. Because relator failed to allege any of the bases permitting the commission to exercise continuing jurisdiction, the magistrate found no abuse of discretion on the part of the commission in denying the relief sought. Second, the magistrate noted that relator s failure to object constituted a failure to exhaust his administrative remedies. Because relator failed to exhaust administrative remedies, one of the required elements of his mandamus action was lacking because he had an adequate remedy at law. Dealing with Rejection 4.7

53 { 3} Upon our independent review, we find no merit to relator s objections. First, relator s objections offer not a single citation to a legal authority of any kind. Rather, relator s counsel recites his personal experience before the commission and simply states that objections to the tentative order were not required, and the exercise of continuing jurisdiction was not necessary. Relator also cites a policy guideline allegedly utilized by the commission in adjusting start dates. He asserts that the policy guideline never mentions the need to exercise continuing jurisdiction. We note the difficulty in reconciling these positions with relator s merit brief, in which he argued that the commission should have exercised continuing jurisdiction. Nevertheless, as the commission aptly notes, in no way does this policy guideline alter the statutes, rules, regulations, and case law establishing the rights and obligations of parties before the commission. The same can be said of counsel s personal experience before the commission. { 4} As a result, after an examination of the magistrate s decision, as well as an independent review of the record and relevant law, we conclude that the magistrate has sufficiently discussed and determined the issues raised by relator. We therefore overrule relator s objections to the magistrate s decision and adopt the appended decision as our own. As a result, we deny relator s request for a writ of mandamus. Objections overruled; writ denied. SADLER and DORRIAN, JJ., concur. APPENDIX Rendered on April 29, IN MANDAMUS MAGISTRATE S DECISION KENNETH W. MACKE, MAGISTRATE. { 5} In this original action, relator, William E. Thirion, requests a writ of mandamus ordering respondent Industrial Commission of Ohio ( commission ) to vacate its order denying his December 1, 2009 motion for an adjustment of the start date for his award of permanent total disability ( PTD ) compensation, and to enter an order changing the start date to November 30, Findings of Fact: { 6} 1. Relator has three industrial claims. Industrial claim number is allowed for right shoulder sprain; aggravation of degenerative disc disease L5-S1. Industrial claim number is allowed for sprain thoracic region. Industrial claim number is allowed for olecranon bursitis, left. 4.8 Workers Compensation Update

54 { 7} 2. On July 24, 2009, at relator s request, he was examined by E. B. Marsolais, M.D., Ph.D., who issued a three-page narrative report in which he opined: Mr. Thirion remains totally and permanently disabled for any consistent reasonably remunerative activity as a direct and proximate result of the allowed injury. There is a small chance that further surgery could help him, but there is also a chance it could make him worse. * * * { 8} 3. The record also contains an office note from Dr. Marsolais dated July 30, The office note states in part: Return to workdate Return to work capacity never (Emphasis sic.) { 9} 4. On August 21, 2009, relator filed an application for PTD compensation. In support, relator submitted the July 24, 2009 report from Dr. Marsolais. { 10} 5. On October 1, 2009, at the commission s request, relator was examined by John L. Dunne, D.O., who issued a narrative report. On October 1, 2009, Dr. Dunne also completed a physical strength rating form. On the form, Dr. Dunne indicated by his mark [t]his Injured Worker is incapable of work. { 11} 6. On October 23, 2009, citing Ohio Adm.Code (C)(6)(a), relator moved the commission for the issuance of a tentative order. In support of his motion, relator submitted a memorandum in which he requested that the tentative order provide for a compensation start date of November 30, 2006 based upon Dr. Marsolais November 30, 2006 office note. { 12} 7. On October 27, 2009, a staff hearing officer ( SHO ) mailed a tentative order awarding PTD compensation starting July 24, The tentative order states: After full consideration of the issue, it is the order of the Staff Hearing Officer that the Application for Permanent and Total Disability filed on 8/21/2009 is GRANTED. This order is based specifically upon the 10/1/2009 Industrial Commission Specialist examination of Dr. John Dunne, D.O., who found that the Injured [W]orker would not be able to perform sustained remunerative employment activities based upon the allowed conditions in claim # Permanent Total Disability benefits are to be paid from 7/24/2009, the earliest medical evidence of permanent total disability -specifically, the 7/24/2009 report of Dr. E. Byron Marsolais, M.D. An objection may be filed with the Industrial Commission within fourteen (14) days of the receipt of this order. If a timely objection is filed, the IC-2 Application for Permanent Total Disability will be scheduled for hearing. (Emphasis sic.) Dealing with Rejection 4.9

55 { 13} 8. Relator did not file an objection to the tentative order. { 14} 9. Rather, on December 1, 2009, relator moved for an adjustment of the PTD start date to coincide with the November 30, 2006 office note of Dr. Marsolais. { 15} 10. Following a January 14, 2010 hearing, an SHO issued an order denying relator s December 1, 2009 motion. The SHO s order explains: It is the order of the Staff Hearing Officer that the Injured Worker s C-86 motion filed 12/01/2009 is denied. The Staff Hearing Officer notes that there was no timely appeal filed to the Staff Hearing Officer order issued 10/27/2009, which granted the Injured Worker s application for permanent total disability compensation. Thus, the Injured Worker did not exhaust all administrative remedies, and the Staff Hearing Officer order issued 10/27/2009 is a final Commission order. This order can only be reopened only [sic] through the Commission s exercise of continuing jurisdiction. The Staff Hearing Officer finds that the Injured Worker has failed to present evidence under R.C to warrant invocation of continuing jurisdiction. The Staff Hearing Officer notes that there has been no allegation of new and changed circumstances, fraud, clear mistake of fact, clear mistake of law, or an error by an inferior tribunal. From a substantive perspective, the Staff Hearing Officer finds that the Injured Worker has submitted the 11/30/2006 office note and 11/30/2006 C-84 report from Earnest B. Marsolais, M.D., indicated that the Injured Worker would never return to work. However, the Staff Hearing Officer finds that the office note fails to specify the work to which the Injured Worker would never return, and the C-84 report refers to the Injured Worker never returning to his former position of employment. Thus, the Staff Hearing Officer finds that the Injured Worker has failed to establish that Dr. Marsolais 11/30/2006 opinion as to the Injured Worker s return to work - never status references sustained remunerative employment. This order is being placed pursuant to State ex. rel. Middleton v. Indus. Comm. (2007), Ohio App. (10th App. Dist.), 06AP-551. Thus, the Injured Worker s request to adjust the start date of Permanent Total Disability compensation is denied. { 16} 11. On March 29, 2010, relator, William E. Thirion, filed this mandamus action. Conclusions of Law: { 17} It is the magistrate s decision that this court deny relator s request for a writ of mandamus, as more fully explained below Workers Compensation Update

56 { 18} Ohio Adm.Code (C) sets forth the commission s rules for the processing of PTD applications. Thereunder, Ohio Adm.Code (C)(6) provides: (a) After the reports of the commission medical examinations have been received, the hearing administrator may refer the claim to an adjudicator to consider the issuance of a tentative order, without a hearing. (i) Within fourteen days of the receipt of the tentative order adjudicating the merits of an application for compensation for permanent and total disability, a party may file a written objection to the order. Unless the party notifies the commission in writing of the objection to the tentative order within fourteen days after the date of receipt of notice of the findings of the tentative order, the tentative order shall become final. (ii) In the event a party makes written notification to the industrial commission of an objection within fourteen days of the date of the receipt of the notice of findings of the tentative order, the application for compensation for permanent and total disability shall be set for hearing and adjudicated on its merits. { 19} Pursuant to Ohio Adm.Code (C)(6), the tentative order mailed October 27, 2009 became final upon the failure of relator to object to the tentative order. { 20} Once the tentative order became final, it could be reopened only through the commission s exercise of continuing jurisdiction. That, in turn, could occur only if one of five prerequisites have been met: (1) new and changed circumstances; (2) fraud; (3) clear mistake of fact; (4) clear mistake of law; or (5) error by an inferior tribunal. State ex rel. Poneris v. Indus. Comm., 111 Ohio St.3d 264, 2006-Ohio { 21} The SHO s order of January 14, 2010 correctly notes that the SHO s order of October 27, 2009 (tentative order) became a final order that can only be reopened through the commission s exercise of continuing jurisdiction. { 22} The SHO s order of January 14, 2010 correctly notes that relator failed to allege any of the five prerequisites for the exercise of continuing jurisdiction. { 23} Under such circumstances, the SHO had no basis to reopen the final order of October 27, { 24} The SHO s order of January 14, 2010 also notes that relator failed to exhaust his administrative remedies. In fact, relator did fail to file an objection to the SHO s order of October 27, 2009 as to the start date of the PTD award. { 25} Relator s failure to exhaust his administrative remedies by failing to object to the October 27, 2009 order has adverse consequences as to maintaining this mandamus action. Dealing with Rejection 4.11

57 { 26} A writ of mandamus will not issue where relator has a plain and adequate remedy in the ordinary course of law. State ex rel. Berger v. McMonagle (1983), 6 Ohio St.3d 28. It is well-settled that an adequate administrative remedy precludes relief in mandamus. State ex rel. Harshaw Chem. Co. v. Zimpher (1985), 18 Ohio St.3d 166; State ex rel. Stafford v. Indus. Comm. (1989), 47 Ohio St.3d 76; and State ex rel. Reeves v. Indus. Comm. (1990), 53 Ohio St.3d 212. { 27} Accordingly, for all the above reasons, it is the magistrate s decision that this court deny relator s request for a writ of mandamus Workers Compensation Update

58 2002-Ohio-3252 State of Ohio ex rel. Edward L. Fries, Relator, v. Administrator, Bureau of Workers Compensation, Industrial Commission Of Ohio and Tastee Apple, Inc., Respondents. No. 01AP LW-6368 (10th) Court of Appeals of Ohio, Tenth District, Franklin. June 25, 2002 O Meara Law Office, and Steven A. Struhar, for relator. Betty D. Montgomery, Attorney General, and Stephen D. Plymale, for respondents Administrator, Bureau of Workers Compensation and Industrial Commission of Ohio. IN MANDAMUS ON OBJECTIONS TO THE MAGISTRATE S DECISION PETREE, J. { 1} Relator, Edward L. Fries, brings this action requesting that this court issue a writ of mandamus directing respondent Industrial Commission of Ohio ( commission ), to vacate its order denying his application for temporary total disability ( TTD ) compensation, and to issue an amended order granting TTD compensation. { 2} On September 19, 1989, relator was injured while employed as a Hi-Lift Operator for respondent Tastee Apple, Inc. Relator s claim was allowed for lumbar and thoracic subluxations; lumbar sprain/strain; aggravation of pre-existing cervical disc disease; and aggravation of pre-existing lumbar spondylolisthesis. On April 27, 1998, relator was examined by psychologist, Dr. James M. Lyall, who opined that relator s claim should be additionally allowed for: major depressive disorder, single episode, severe without psychotic features; pain disorder associated with both psychological factors and a general medical condition, chronic; and personality disorder, mixed, with antisocial passive/aggressive features. Dr. Lyall further opined that relator should engage in psychotherapy within a period of six months to one year. He continued, [i]f this individual receives appropriate mental health care there is every reason to believe that he will make significant improvement within a period of six months to one year. This is not to say that he will not need mental health treatment after that but logically we can infer that he will make a significant and maximum part of his improvement during this time period. Dealing with Rejection 4.13

59 { 3} On May 13, 1998, relator moved for an additional claim allowance based upon Dr. Lyall s report. In response, the commission had relator examined by its own psychologist, Dr. Thomas A. Boyd. Dr. Boyd opined that relator suffered from a major depressive disorder which he qualified as moderate. However, he did not feel that there was evidence which medically substantiated a further allowance for the condition of pain disorder, or for the allowance of an aggravation of a preexisting personality disorder. Dr. Boyd continued, noting that the relator was not capable of returning to his former employment, nor was he currently capable of sustained remunerative employment. However, neither he, nor Dr. Lyall, specified any definite period of temporary total disability. { 4} Following a December 7, 1998 hearing, relator s claim was additionally allowed for major depressive disorder, pain disorder and aggravation of preexisting personality disorder based upon the report of Dr. Lyall. Thereafter, Barbara Schwartz, a licensed professional clinical counselor, certified temporary total disability from January12, 1999, to an estimated return to work date of May 1, { 5} On June 9, 1999, relator moved for an award of TTD compensation based upon Ms. Schwartz s C-84 and the report of Dr. Boyd. This application was denied by a district hearing officer ( DHO ) for two reasons. First, the DHO concluded that the report of Dr. Boyd was implicitly rejected in favor of the report of Dr. Lyall. Second, the DHO concluded that Ms. Schwartz is not qualified to certify the duration of a claimant s disability. Relator subsequently filed this action on June 25, { 6} On July 10, 2001, pursuant to Civ.R. 53(C) and Loc.R. 12(M) of the Tenth District Court of Appeals, relator s complaint was referred to a magistrate of this court, who rendered a decision and recommendation which includes comprehensive findings of fact and conclusions of law. (Attached as Appendix A.) Specifically, the magistrate concluded that the commission erred in holding that Zamora v. Indus. Comm. (1989), 45 Ohio St.3d. 17, prohibited the commission from considering Dr. Boyd s disability opinion when adjudicating relator s TTD application. The magistrate also concluded that Dr. Boyd s report could be used to support an award of TTD compensation, even though he did not certify TTD for any specific period of time. Finally, the magistrate concluded that Ms. Schwartz, the clinical counselor who prepared a C-84 certifying relator s disability period, is not in fact authorized by law to certify TTD. Accordingly, the magistrate concluded that this court should issue a writ of mandamus directing the commission to vacate its order denying relator TTD compensation and to enter a new order, in a manner consistent with this magistrate s decision, that adjudicates relator s motion for TTD compensation. The matter is now before this court for ruling upon objections to that decision filed by the respondents on December 4, 2001, and by the relator on December14, { 7} Respondents object to the decision and recommendation of the magistrate on two grounds. First, respondents argue that the magistrate incorrectly interpreted Zamora. Respondents believe that Zamora stands for the proposition that once any portion of a medical report has been rejected for any reason, the remaining portions of the report cannot be used for any other reason whatsoever. Having carefully reviewed Zamora, as well as subsequent Ohio Supreme Court decisions on point, we are unable to agree Workers Compensation Update

60 { 8} In Zamora, the commission rejected a report which concluded that Zamora was moderately depressed, that his depression preceded his physical injury, and that the contribution of his physical injury to the depression was minimal, in favor of another report, which concluded that Zamora s depression was so severe that it rendered him permanently and totally disabled. Under those circumstances, the Ohio Supreme Court affirmed this court s conclusion that it would be inconsistent to allow the commission to reject the conclusion of the first report, only to resurrect that conclusion in order to rely upon it at a later time. This was so because the two reports were clearly and irrevocably inconsistent. { 9} In State ex rel. Verbanek v. Indus. Comm. (1995), 73 Ohio St.3d 562, the Ohio Supreme Court recognized that medical reports are often comprised of discrete parts. The court explained that [w]e recognize that the credibility of claimant s recited history does not depend on Boutouras impairment assessment and is, thus, in a sense, severable from it. Id. at 563. Moreover, we agree with the magistrate s observation that the concept of severability underpins the well-settled view that the commission may reject the conclusion of a rehabilitation report and draw its own conclusion from the same medical information. See State ex rel. Ewart v. Indus. Comm. (1996), 76 Ohio St.3d 139, 141. As such, respondents first objection is overruled. { 10} In their second objection, respondents argue that the magistrate incorrectly concluded that the commission can award TTD compensation based upon a record, or a medical report, that does not certify a period of disability. The Ohio Supreme Court has repeatedly explained that there must be some evidence in the record to support a decision of the commission. See State ex rel. Noll v. Indus. Comm. (1991), 57 Ohio St.3d 203; and State ex rel. Stephenson v. Indus. Comm. (1987), 31 Ohio St.3d 167. In State ex rel. Mitchell v. Robbins & Myers, Inc. (1983), 6 Ohio St.3d 481, the court explained in part: { 11} [W]e will, when necessary, henceforth grant a writ of mandamus directing the commission to specify the basis of its decision. *** In other words, district hearing officers, as well as regional boards of review and the Industrial Commission, must specifically state which evidence and only that evidence which has been relied upon to reach their conclusion, and a brief explanation stating why the claimant is or is not entitled to the benefits requested. Moreover, this court will no longer search the commission s file for some evidence to support an order of the commission not otherwise specified as a basis for its decision. [Id. at ] { 12} In State ex rel. Yellow Freight System, Inc. v. Indus. Comm. (1998), 81 Ohio St.3d 56, the Ohio Supreme Court explained: { 13} The receipt of TTD rests on a claimant s inability to return to his or her former job as a direct result of an industrial injury. State ex rel. Pretty Products, Inc. v. Indus. Comm. (1996), 77 Ohio St.3d 5, 6 ***. The burden to prove these elements is the claimant s, State ex rel. Pleban v. Indus. Comm. (1977), 78 Ohio St.3d 406, 407 *** and requires the production of affirmative evidence. Stated differently, the lack of some evidence supporting the [commission s] denial of [TTD] does not automatically translate into some evidence supporting [the] Dealing with Rejection 4.15

61 award. State ex rel. Foor v. Rockwell Internatl. (1997), 78 Ohio St.3d 396, 398 ***; State ex rel. Lampkins v. Dayton Malleable, Inc. (1989), 45 Ohio St.3d 14, ***. [Id. at 57.] { 14} The court continued explaining that: { 15} Fox [v. Indus. Comm. (1995), 162 Ohio St. 569] however, specifically requires direct medical testimony or other medical evidence to establish causation in proving a claimant s eligibility for workers compensation. { 16} *** { 17} Without medical evidence, the commission has no basis to determine the cause of a medical condition-it simply does not have the expertise. *** [Id. at ] { 18} Our review of the applicable case law leads us to conclude that the disability period caused by a given medical condition is a medical issue which must be supported by some medical evidence. While the commission may properly choose between competing or conflicting medical views, it may not create a period of disability out of whole cloth. In this particular case, neither Dr. Boyd s nor Dr. Lyall s report contain evidence of any specific period of disability for the relator s allowed conditions. As such, we sustain respondents second objection. { 19} Finally, we find no error in the magistrate s conclusion that a clinical counselor is not authorized by law to certify TTD. R.C (A) provides that payments for TTD compensation shall be for a duration based upon the medical reports of the attending physician. Additionally, Ohio Adm.Code (A) provides that compensation shall not be approved by the commission in a claim unless supported by a report of a physician duly licensed to render medical treatment. For the foregoing reasons, as well as for the reasons set forth in the magistrate s decision, we find no error in the magistrate s conclusion that a clinical counselor is not authorized by law to certify TTD. Relator s objections are therefore overruled. { 20} Based upon a thorough examination of the record, the magistrate s decision, as well as the objections, we conclude, as noted, that the magistrate correctly determined that a clinical counselor cannot substitute for a physician. The magistrate also correctly found, pursuant to Zamora and its progeny, that a rejection of a portion of a medical or rehabilitative report does not necessarily dictate that the entire report be removed from consideration. Therefore, we adopt in part and reject in part the November20, 2001 decision of the magistrate. Because both Dr. Boyd and Dr. Lyall opined that relator is disabled, we hereby issue a writ directing the commission to vacate its order denying relator s TTD application, and to take additional evidence as to the period of relator s disability so that the commission may properly adjudicate relator s application. Relator s objections overruled; respondents objections sustained in part and overruled in part; and writ granted. BRYANT and LAZARUS, JJ., concur Workers Compensation Update