v*1/0 ^^` STATE OF OHIO ex rel., MATTHEW T. GEORGE, Supreme Court No.: Appellee, HONDA OF AMERICA MFG., INC., Appellant.

Transcription

1 v*1/0 ^^` IN THE SUPREME COURT OF OHIO STATE OF OHIO ex rel., MATTHEW T. GEORGE, vs. Appellee, INDUSTRIAL COMMISSION OF OHIO, Supreme Court No.: Appeal from the Tenth Appellate District, Franklin County, Ohio Case No. 09APD Appellant, and HONDA OF AMERICA MFG., INC., Appellant. MERIT BRIEF OF APPELLANT HONDA OF AMERICA MFG., INC. Robert A. Minor ( ) Counsel of Record Vorys, Sater, Seymour and Pease LLP 52 East Gay Street P.O. Box 1008 Columbus, Ohio Telephone: (614) Fax: (614) raminornvorys.com Counsel for Appellant Honda of America Mfg., Inc. Karen D. Turano ( ) Counsel of Record Charles Zamora Co., LPA 447 East Mound Street Columbus, Ohio Telephone: (614) Facsimile: (614) lcarenAzamoralaw.com Counsel for Appellee Matthew T. George

2 Richard Cordray Attorney General of Ohio Joseph C. Mastrangelo ( ) Counsel of Record Assistant Attorney General Workers' Compensation Section 150 East Gay Street, 22"d Floor Columbus, Ohio Telephone: (614) Facsimile: (614) joseph.mastrangeloqr^ohioattornevgeneral o gv Counsel for Appellant, Industrial Commission of Ohio

3 TABLE OF CONTENTS PAGE 1. STATEMENT OF THE CASE... 1 II. STATEMENT OF THE FACTS... 2 III. LAW AND ARGUMENT... 8 A. PROPOSITION OF LAW NO. 1: The Commission is the exclusive arbiter of the credibility and the weight to be allotted to evidence including medical evidence... 8 B. PROPOSITION OF LAW NO. 2: Dr. Hauser's report constitutes "some evidence" upon which the Commission could rely Dr. Hauser's report is not internally inconsistent or fatally flawed Dr. Hauser's conclusion that the conditions diagnosed in 2008 were resolved by prior surgery in 2004 was not inconsistent or equivocal Dr. Hauser properly accepted all of the allowed conditions in the claim...: Dr. Hauser was free to rely upon and interpret the surveillance evidence based upon his medical training and observations IV. CONCLUSION CERTIFICATE OF SERVICE APPENDIX

4 TABLE OF AUTHORITIES PAGE CASES Baja Marine Corp. v. Indus. Comm., 114 Ohio St. 3d 70 (2007) Barker v. Int'l Truck and En in g e Corp., 2007-Ohio-4800 (Franklin Cty. 2007) Sniith v. Indus. Comm., 2009-Ohio-4833 (Franklin Cty. 2009) State, ex rel. Berger, v. MeMonagle (1983), 6 Ohio St. 3d State, ex rel. Brady, v. Indus. Comm. (1986), 28 Ohio St. 3d State, ex rel. Carlson v. Avon Prods., Inc., 2008-Ohio-6083 (Franklin Cty. 2008)... 19, 20 State, ex rel. Certified Oil Corp. v. Administrator, Ohio BWC, 2007-Ohio-3877 (Franklin Cty. 2007) State, ex rel. Chrysler Corp., v. Indus. Comm. (1998), 81 Ohio St. 3d State, ex rel. Eberhardt, v. Flxible Corp. (1994), 70 Ohio St. 3d State, ex rel. Elliottv. Indus. Comm. (1986), 26 Ohio St. 3d , 10, 11 State, ex rel. Fiber-Lite Corp., v. Indus. Comm. ( 1988), 36 Ohio St. 3d State, ex rel. Frabott, v. Indus. Comm., 2003-Ohio-3433 (Ohio App. 10 Dist.) State, ex rel. Gay, v. Mihm, 68 Ohio St. 3d 315 (1994) State, ex rel. Giel, v. Indus. Comm., 1995 WL (Ohio App. 10 Dist) State, ex rel. Ingersoll Rand Co. v. Indus. Comm., 2010-Ohio-5362 (Franklin Cty. 2010)...: 14 State, ex rel. Keener, v. Farnsworth & Assoc., Inc., 2006-Ohio-4233 (Franklin Cty. 2006)... 9 State, ex rel. Letcher, v. Keco Indus., 2008-Ohio-1907 (Franklin Cty. 2008) State, ex rel. Li g nt, v. Clermont Cty. Transit Bd., 2006-Ohio-5779 (Franklin Cty. 2006)... 10,17 State, ex rel. Pass v. C.S.T. Extraction Co. (1995) 74 Ohio St. 3d State, ex rel. Rankin, v. Cyned Trans. Corp., 2006-Ohio-2962 (Franklin Cty. 2006) ii

5 State, ex rel. Richko, v. Equity Residential Prop. Mpnt. Corp., 2006-Ohio-4979 (Franklin Cty. 2006) State, ex rel. Scioto Metals, Inc., v. Indus. Comm. (2001), 92 Ohio St. 3d State, ex rel. Sears Roebuck Co., v. Indus. Comm., 2007-Ohio-838 (Franklin Cty. 2007) State, ex rel. Smiths Medical ASD., Inc., v. Indus. Comm., Ohio-464 (Franklin Cty. 2011)......:... 8, 12, 13 State, ex rel. Teece, v. Indus. Comm. (1981), 68 Ohio St. 2d , 10 State, ex rel. Tharp, v. Consolidated Metal Prods., 2003-Ohio-6355 (Ohio App. 10 Dist.)......:... 8, 12 State, ex rel. Warnock, v. Indus. Comm., 100 Ohio St. 3d 34 (2003) State, ex rel. West, v. Indus. Comm. (1996), 74 Ohio St. 3d State, ex rel. Young, v. Indus. Comm. (1997), 79 Ohio St. 3d iii

6 I. STATEMENT OF THE CASE: This is a workers' compensation case brought in mandamus. The issue to be decided is whether the Appellant, Industrial Commission of Ohio ("Commission") abused its discretion in relying on a medical report from Dr. Walter Hauser to deny the request of Appellee, Matthew George ("Appellee") for arthroscopic surgery. Appellee instituted an original action in mandamus in the Franklin County Court of Appeals, Tenth Appellate District, challenging the Commission's denial of his request for surgery. Appellee has asserted that the evidence on which the Commission relied, the report of Dr. Hauser, did not constitute "some evidence" to support such a denial. In denying the requested surgery, the Commission had before it Appellee's motion and supporting medical evidence from his attending physician, Dr. Watson, two surveillance videos, and medical report from Dr. Hauser, all of which presented conflicting evidence on whether the requested surgery was reasonable or appropriate. In its thorough decision, the Commission cited and reviewed the evidence that it relied on in denying the requested surgery and set forth its reasons for doing so. Appellee's Complaint in Mandamus was briefed and argued before a Magistrate who denied the requested writ. The Magistrate concluded that Dr. Hauser's report constituted "some evidence" upon which the Commission could rely to deny the requested surgery. Appellee submitted timely objections to the full Court of Appeals. In a decision dated September 14, 2010, the court rejected the Magistrate's report, concluded that Dr. Hauser's report did not constitute "some evidence," and granted the requested writ of mandamus ordering the Commission to vacate its Order denying surgery and to rehear the issue. Honda and the Commission timely appealed to this Court.

7 The Tenth District's Decision is an impermissible substitution of the court's judgment for that of the Commission. This, Court has repeatedly held that the Commission has the exclusive authority to determine the weight and credibility to be given to evidence, including medical evidence. The Tenth District's Decision wrongly invites parties to challenge those orders of the Commission in which it declined to credit a medical report for one reason or another. The courts would then become involved in the minute details of claims. Further, and for the reasons discussed below, the Commission's Order was supported by "some evidence" and was a proper exercise of its authority. As such, there was no abuse of discretion and the requested writ of mandamus should not issue. II. STATEMENT OF THE FACTS: On October 2, 2003, Appellee was injured in the course of his employment with Appellant Honda of America Mfg., Inc. ("Honda"). Record ("R.") at 22 (pg. 86). He reported that he was pulling a door beam basket up to the work area when a cart stopped suddenly and jerked his shoulder. Id. He was evaluated by an orthopedic surgeon, Dr. Watson, who had seen him previously for left shoulder problems. Id. (pg. 85). Dr. Watson evaluated Appellee on October 20, 2003, and diagnosed a probable right rotator cuff tendonitis or bursitis with a partial thickness tear of the right rotator cuff. Id. He ordered an MRI, which was perfonned on November 10, Id. (pg. 84). The MRI revealed a "SLAP-type labral tear and a partial tear of the subscapularis tendon with medial subluxation of the long head of the biceps tendon, mild bicipital tendinopathy, and a high grade undersurface tear involving the distal anterior supraspinatus tendon fibers." Id. Appellee's workers' compensation claim was allowed for "right partial thickness rotator cuff tear and the right shoulder labral tear." Id. (pg.83). 2

8 On January 8, 2004, Appellee underwent surgery followed by eight weeks of physical therapy. Id. (pg. 81). The surgery consisted of a right shoulder arthroscopic decompression with release of the coracoacromial ligament, anterior acromioplasty, and subacromial bursectomy. Id. In addition, extensive arthroscopic debridement including debridement of the partial thickness tear of the subscapularis tendon, debridement of partial thickness tear of the supraspinatus, debridement of the superior labrum anterior/posterior lesion, and debridement undersurface rotator cuff tendinitis. Id. Afterward, Appellee received temporary total disability compensation until May 2004, when he was able to return to work on a gradual return to work basis. On June 9, 2004, Dr. Watson reported that Appellee's "range of motion is good, his strength is improving although he still has some mild supraspinatus and biceps weakness. His crepitus is much improved although he again still has some mild crepitus." Id. (pg. 78). On July 14, 2004, Dr. Watson reported that Appellee's "motion and strength don't look bad, but he has had some increased pain." Id. (pg. 79). Dr. Watson attributed any ongoing symptoms to Appellee's recent return to work. Id. Appellee went off work again in May 2005, due to a back condition; his employment with Honda ended in January Appellee did not receive any medical treatment for his right shoulder from mid-2004 until early In February 2008, Appellee returned to Dr. Watson complaining of pain in his right shoulder. Id. (pg. 69). The office note indicated no new trauma subsequent to the original date of injury. Id. Dr. Watson requested a repeat MRI and reactivation of Appellee's claim, both of which were granted by Honda. Id. (pg. 70). On March 13, 2008, a repeat MRI was performed, which revealed a partial thickness articular sided tear involving the distal subscapularis tendon with associated medial displacement of the long head of the biceps tendon 3

9 with mild tendinopathy and mild enlargement and intermediate heterogenous signal intensity of the supraspinatus consistent with postsurgical change and at least moderate tendinopathy with associated bursal sided fraying. Id. (pg. 68). On May 30, 2008, Dr. Watson noted that the claim was initially allowed for a "right shoulder labral tear and right shoulder partial thickness tear of the rotator cuf " Id. (pg. 46). He reported that the repeat MRI showed similar conditions in the nature of "articular-sided tearing of the distal subscapularis tendon, that is, tearing of the rotator cuff and severe irregularity of the superior labrum... consistent with his labral tearing." Id. Accordingly, because the conditions appeared to be consistent with the already allowed conditions, Dr. Watson stated: "I am not sure anything should be added to the diagnosis." Id. Nevertheless, on June 26, 2008, Dr. Watson submitted a C-9 request for the additional conditions of "partial thickness articular sided tear of the right distal subscapularis tendon; right supraspinatus partial thickness tearing; and medial displacement of the long head of the biceps tendon with tendinopathy." Id. (pg. 35). In July 2008, Honda arranged for an activities check of Appellee as a result of its being informed that he was working. Id. (pg. 54). Appellee had started working for a property management company. The investigation reported interviews undertaken of people who had familiarity with the property management company. Id. (pg. 55). For example, Darlene George, Appellee's mother, stated that her son had done drywall, plumbing and electrical work for the properties and for other realtors. Id. Mr. Craig Rafael indicated that Appellee was a jack of all trades and did snowplowing at the Franklin County Coroners lot and the Gantz Road Franklin County facility. Id. Mr. Tom Conley indicated that Appellee had worked for several years doing tear outs, plumbing, electrical, drywall installations and welding. Id. 4

10 On August 7, 2008, Dr. Christopher Holzaepfel examined Appellee. Id. (pg. 47). Dr. Holzaepfel wrote that Appellee's condition had stabilized after the January 2004 surgery and that he was able to return to work. Id. (pg. 48). He further noted that Appellee had not reported any new injury or trauma. Id. On October 13, 2008, after a review of the surveillance showing Appellee engaged in heavy lifting, Dr. Watson noted that "[h]is surveillance showing him being involved in repetitive lifting complicates matters as far as could these activities also cause injury or aggravate things." Id. (pg. 45). Despite Dr. Watson's prior equivocal opinions, on October 24, 2008, Appellee filed a motion requesting the additional conditions of "partial thickness articular sided tear of the right distal subscapularis tendon; right supraspinatus partial thickness tearing and medial displacement of the long head of the biceps tendon with tendinopathy." Id. (pg. 44). On February 27, 2009, the conditions were allowed by the Commission. Id. (pg. 36, 39). In February-March 2009, Honda obtained additional surveillance of Appellee. Id. at (pg ). This time, surveillance showed Appellee at a work-out facility engaged in intense workouts, including, repetitive lifting of weights and approximately five sets of bench-pressing using pound weights. Id. at (pg ). On March 12, 2009, Dr. Watson requested arthroscopic surgery. Id. (pg. 31). Honda denied the surgery based upon the report of Dr. Hauser dated April 27, Id. (pg. 31, 13). In his report, Dr. Hauser noted that the only condition that Appellee demonstrated in 2009 (after both MRIs) was a rupture of the biceps tendon, which occurred after the original date of injury and was not an allowed condition in the claim. Id. (pg. 18). Dr. Hauser wrote that Appellee's initial rotator cuff conditions resolved after the January 2004 surgery. Id. Indeed, upon examination, Dr. Hauser found no further objective findings with regard to the right shoulder 5

11 other than the rupture of the biceps tendon - which he opined is not related to the original injury. Id. He explained that "[f]rom the operative report, it is fairly clear that this biceps tendon was intact at the groove and fully stable on going through a range of motion in 2003." Id. At the time of his physical examination, Dr. Hauser found "no significant objective findings on his physical examination other than the rupture of the biceps tendon. That rupture occurred when he was putting on his boot." Id. Accordingly, Dr. Hauser wrote that "now that the tendon is ruptured, there is no indication to do another operation. Attempts to repair the tendon are not going to improve the function of the right upper extremity." Id. Further, Dr. Hauser wrote "[t]here is no need to repair his rotator cuff and, hence, in my opinion absolutely no reason for any further surgery, and certainly not for the allowed conditions in this claim, which were resolved with his prior surgery." Id. In doing so, Dr. Hauser also relied upon the surveillance taken of Appellee from February 2009 through March Id. (pg ). He noted that the "important" date was March 10, 2009, because, on that date, Appellee was shown working out at a health club. Dr. Hauser noted that Appellee was lifting a "significant amount of weight" which was "pressed well above his head." Id. (pg. 19). Appellee was also doing "bench presses." Id. Dr. Hauser noted that Appellee's activities were consistent with his relatively benign physical examination. Id. Dr. Hauser lastly noted that Appellee's weight lifting activities may also be a cause of the nonallowed biceps tendon rupture. Id. On May 21, 2009, Appellee filed a formal motion requesting the surgery. Id. (pg. 12). The matter was contested and came on for hearing before a district hearing officer, who granted the request and Honda appealed. Id. (pg. 9). On September 2, 2009, a staff hearing officer vacated the prior Order and denied the request for surgery relying upon Dr. Hauser's report. Id. 6

12 (pg. 7). In doing so, the staff hearing officer found Dr. Watson's reports to be non-persuasive. Id. Further appeal to the Commission was denied. Id. (pg. 1). Appellee then filed an original action in mandamus in the Court of Appeals, Tenth District. R. at 2. The parties submitted briefs and oral arguments were heard before a Magistrate on May 18, R. at 23, 30, 34. Appellee's principal argument was that Dr. Hauser's report did not constitute "some evidence" upon which the Commission could rely for three main reasons: 1) Dr. Hauser did not accept all of the allowed conditions; 2) Dr. Hauser's opinion that the allowed conditions had resolved after the 2004 surgery was not credible given that the newly allowed conditions were not diagnosed until the second MRI in 2008; and 3) Dr. Hauser misinterpreted the surveillance to opine that Appellee was "active" in the gym. R. at 23 (pg. 10). On May 26, 2010, a Magistrate recommended a denial of the requested writ, finding that Dr. Hauser's report constituted "some evidence" upon which the Commission could rely. R. at 35 (pg. 10). In doing so, the Magistrate explained that Dr. Hauser's report could be interpreted as: 1) accepting all the allowed conditions in the claim; 2) concluding that the allowed conditions were resolved with the surgery in 2004 even though the newly allowed conditions were not formally recognized at that time; and 3) that Appellee was "active" in the use of his right shoulder in lifting weights and working out. Id. (pg ). Appellee objected to the Magistrate's Decision. R. at 36. The Court of Appeals rejected the recommendation of the Magistrate and issued a Decision granting Appellee's requested writ. R. at 43. Without directly addressing whether Dr. Hauser erred in concluding that Appellee's allowed conditions (even the newly allowed conditions) had been resolved by a prior surgery or whether Dr. Hauser accepted all of the allowed conditions, the Court of Appeals merely found a number of "troubling inconsistencies," 7

13 and held that Dr. Hauser's report could not constitute "some evidence" upon which the Commission could rely upon to deny surgery. Id. (pg. 4-6). III,LAW AND ARGUMENT: A. PROPOSITION OF LAW NO. 1: The Commission is the exclusive arbiter of the credibility and the weight to be allotted to evidence including medical evidence. The Commission properly exercised its function in adjudicating the credibility and weight to be given to Dr. Hauser's report and in finding that the requested surgery was not necessary or appropriate. Questions of credibility and the weight to be given to the evidence are within the Commission's sole discretionary authority. State, ex rel. Teece, v. Indus. Comm. (1981), 68 Ohio St. 2d 165, 169; see also State, ex rel. Smiths Medical ASD., Inc., v. Indus. Comm., 2011-Ohio-464, 37 (Franklin Cty. 2011) ("The evaluation of the weight and credibility of the evidence before it rests exclusively with the commission.") (citations omitted). In exercising its exclusive function, the Commission is the sole evaluator of medical evidence and is free to accept some and reject other medical reports. State, ex rel. Tharp, v. Consolidated Metal Prods., 2003-Ohio-6355, 61 (Ohio App. 10 Dist.) ("With respect to the evidentiary value of inedical reports... the commission is the finder of fact and has sole authority to determine the credibility and weight of the evidence, including medical reports."); see, also, State, ex rel. Giel, v. Indus. Comm., 1995 WL (Ohio App. 10 Dist) ("It is... well-settled that it is the commission's exclusive responsibility to assess the weight and credibility of medical evidence."). It is immaterial that Dr. Watson authored contrary opinions that the Commission found to be unpersuasive. A Commission order will not be overturned because there is contrary evidence on file. See, e.g., State, ex rel. Pass, v. C.S.T. Extraction Co. (1995), 74 Ohio St. 3d 373, 376 ("It is immaterial whether other evidence, even if greater in quality and/or quantity, supports a 8

14 decision contrary to the conunission's."). Indeed, "the Commission is not required to explain why it finds one report to be more credible than another report or why it finds other reports not to be as credible." State, ex rel. Keener, v. Farnsworth & Assoc., Inc., 2006-Ohio-4233, 24 (Franklin Cty. 2006). Where a challenged order is supported by "some evidence," the presence of contrary evidence is immaterial. State, ex rel. West, v. Indus. Comm. (1996), 74 Ohio St. 3d 354, 356. As explained more fully below, Dr. Hauser's report was thorough and sound. It constituted "some evidence" upon which the Commission could rely to deny surgery. Appellee invites the courts to reweigh the medical evidence and render a contrary opinion. However, that is not the function of a reviewing court in mandamus. The Court will not reweigh the evidence or substitute its judgment for that of the Commission in weighing the evidence. State, ex rel. Chrysler Corp., v. Indus. Comm. (1998), 81 Ohio St. 3d 158, 166 (citations omitted) ("The commission is the exclusive evaluator of the weight and credibility to be given [evidence], and reviewing courts cannot second-guess the conunission's credibility determinations in mandamus."). See, also, State, ex rel. Scioto Metals, Inc., v. Indus. Comm. (2001), 92 Ohio St. 3d 232 (citations omitted) ("... neither [the Supreme Court] or the court of appeals can substitute... judgment for the commission's in making those determinations."). Accordingly, "review extends only to whether some evidence exists for the commission's decision; after that courts must defer to the commission's determination." C sler, supra at 166. Further, "[i]t must be assumed, absent evidence to the contrary, that the Commission acted in good faith and properly performed its function in reviewing the evidence before it." Elliott, supra, at pg. 79 n.1 (citations omitted). Thus, the Commission was the exclusive arbiter of the medical evidence submitted on issue of whether Appellee's requested surgery was medically necessary or appropriate. 9

15 Reviewing the evidence on file, the Commission determined that the surgery was not. The Commission chose to rely upon the report of Dr. Hauser and not the report of Dr. Watson. Appellee may disagree with the Commission's Order and there may have been contrary medical evidence on file. But the Commission has the sole authority to determine the weight and credibility to be given to the evidence and the jurisdiction to determine disputed factual situations. A court will not substitute its judgment for the Commission's. See, e.., State ex rel. Letcher, v. Keco Indus., 2008-Ohio-1907, 10 (Franklin Cty. 2008) ("While relator and the magistrate, or even we, may have determined that Ms. Vogelsang's report was not persuasive or that [claimant] could not perform any sedentary work, we must decline to reweigh the evidence or to second guess the SHO's evaluation of it."). Appellee's objections and request for a writ of mandamus wrongly sought a reweighing of the evidence. See, e.., State, ex rel. Li g nt, v. Clermont Cty. Transit Bd., 2006-Ohio-5779, 14 (Franklin Cty. 2006) (concluding that a writ should not issue where "[r]elator's objections call into question the evidentiary weight of Dr. Berg's report and deposition," finding "[t]hat is an assessment left entirely to the discretion of the commission."), citing Teece, 68 Ohio St. 2d at 165. Honda respectfully submits that the writ should have been denied. B. PROPOSITION OF LAW NO. 2: Dr. Hauser's report constitutes "some evidence" upon which the Commission could rely. It is well-settled that mandamus is an "extraordinary" remedy. State, ex rel. Elliott, v. Indus. Comm. (1986), 26 Ohio St. 3d 76, 78. To establish entitlement to mandamus relief, the proponent must demonstrate: (1) that it possesses a clear legal right to the relief requested; (2) that the Commission is under a clear legal duty to perform the requested act; and (3) that there is no plain and adequate remedy at law. State, ex rel. Berger, v. McMonagle (1983), 6 Ohio St. 3d 10

16 28, 29. A clear legal right to mandamus relief does not lie to control the discretion vested in the Commission so long as its discretion is exercised within legal bounds. Elliott, su ra at pg. 79. To show a clear legal right to relief, the proponent must show that the Connnission abused its discretion. Id. at In disputed factual matters, an abuse of discretion is shown only where the record contains no evidence to support the Commission's order. State, ex rel. Brady, v. Indus. Comm. (1986), 28 Ohio St. 3d 241. Stated differently, the Court will not disturb a Commission order supported by "some evidence." State, ex rel. Fiber-Lite Corp., v. Indus. Comm. (1988), 36 Ohio St. 3d 202, 204. This Court has described the standard as "restrained deference" to the Commission. State, ex rel. Gay, v. Mihm, 68 Ohio St. 3d 315, 319 (1994). 1. Dr. Hauser's report is not internally inconsistent or fatally flawed. Appellee argued that Dr. Hauser's report must be rejected as it was internally inconsistent. The Court of Appeals agreed and noted what it called a "number" of "troubling inconsistencies" which served as the basis to grant the requested writ. R. at 43 (pg. 4-6). Two of these alleged "inconsistencies" includet: Dr. Hauser notes that [t]he first note I see of actual evaluation and treatment for his right shoulder was on [February 6, 2008] when he saw Dr. Larry Watson. Yet, Dr. Hauser earlier had acknowledged that [Appellee] had seen Dr. Watson on October 20, 2003 for [Appellee's] right shoulder injury and that the treatment had progressed to the point of surgery on the right shoulder on January 8, 2004, a surgery which is described in great detail on page three of Dr. Hauser's report. R. at 43 (pg. 4); Dr. Hauser's report indicates that "[o]ther than the three mentioned independent medical evaluations, I did not see much of any information in the records about his [Appellee's] shoulders." Then, Dr. Hauser proceeds to discuss for multiple paragraphs ' Appellee's main argument dealt with Dr. Hauser's opinion that the additional conditions allowed in 2008 resolved by the previous surgery in 2004, that Dr. Hauser did not accept all of the allowed conditions, and that Dr. Hauser inappropriately relied upon the surveillance. The Court of Appeals, however, extended its analysis to include tivo additional "inconsistencies," which are discussed in this section. Appellee's other arguments are addressed in Sections B(2), (3) and (4), infra. 11

17 Dr. Watson's recent findings and the results of the most recent MRI on [Appellee's] right shoulder. Id. (pg. 4-5). Further, "[e]quivocal or inconsistent medical reports do not constitute some evidence upon which the commission could rely." State, ex rel. Eberhardt, v. Flxible Corp. (1994), 70 Ohio St. 3d 649; State, ex rel. Frabott, v. Indus. Comm., 2003-Ohio-3433, 23 (Ohio App. 10 Dist.) (citations omitted). This Court has clarified that "equivocation occurs when a doctor repudiates an earlier opinion, renders contradictory or uncertain opinions, or fails to clarify an ambiguous statement." Eberhardt, 70 Ohio St. at 657. Equivocal opinions are "not evidence." Id. That is because "[r]epudiated, contradictory or uncertain statements reveal that the doctor is not sure what he means and, therefore, they are inherently unreliable." Id. By contrast, "[a]mbiguous statements... merely reveal that the doctor did not effectively convey what he meant and, therefore, they are not inherently unreliable." Id. As stated above, "[w]ith respect to the evidentiary value of medical reports... the commission is the finder of fact and has sole authority to determine the credibility and weight of the evidence, including medical reports." ThW, 2003-Ohio-6355 at 61. "In general, the court does not `second guess' medical opinions from medical experts and will remove a medical opinion from evidentiary consideration as having no value only when the report is patently illogical or contradictory even to a layperson, or for a similar patent defect such as relying on a non-allowed condition." Id. at 67 (citations omitted) (emphasis added); see, also, State ex rel. Smiths Medical ASD., Inc., v. Indus. Comm., 2011-Ohio-464, 41 (Franklin Cty. 2011), citing State, ex rel. Young, v. Indus. Comm. (1997), 79 Ohio St. 3d 484 ("[I]n mandamus, courts will not second guess the medical expertise of the doctor whose report is under review."). The first two alleged "inconsistencies" are explained away when considered in the appropriate context and are not "inconsistencies." First, Dr. Hauser's reference to February 6, 12

18 2008 as the "first" note of "actual evaluation and treatment of his right shoulder," clearly refers to the "first" treatment after the significant four-year treatment gap. Second, the independent medical evaluations (IME) relate to medical evidence elicited by independent medical examiners and not treating physicians. These alleged "inconsistencies" relate to collateral information and not to Dr. Hauser's ultimate medical opinion; to that end, they are an "unnecessary aside." See, e.., Smith v. Indus. Comm., 2009-Ohio-4833, 12 (Franklin Cty. 2009) (where a doctor opined that claimant was permanently and totally disabled based on the medical condition, but then commented on his education background, the comment was "dictum" and did not relate to his ultimate opinion). Indeed, even if it were true that Dr. Hauser was mistaken regarding the number of times Appellee treated with Dr. Watson or the IME evidence, those misstatements are separate and apart from and do not discredit his ultimate medical opinion that surgery was not necessary or appropriate. Barker v. Int'l Truck and Engine Corp., 2007-Ohio-4800, 3 (Franklin Cty. 2007) ("[A] mistake regarding relator's allowed physical condition did not prevent the commission from considering Dr. Murphy's report for purposes of the allowed psychological condition."); State ex rel. Smiths Medical ASD., Inc., v. Indus. Comm., 2011-Ohio-464, 37 (Franklin Cty. 2011), citing State, ex rel. Warnock, v. Indus. Comm., 100 Ohio St. 3d 34 (2003) ("Inaccuracies in a medical report that are harmless and inadvertent do not disqualify the report from evidentiary consideration." ). As recently stated by the Tenth District Court of Appeals: We agree that the addendum contains two misstatements. However, this does not mean that the addendum is equivocal. The addendum is not internally inconsistent and Dr. Randolph is not unclear or uncertain about his conclusions, nor is it unclear whether Dr. Randolph understands what he means. This report is not equivocal and is not barred from consideration by Eberhardt and its progeny. 13

19 State, ex rel. Richko, v. Equity Residential Prop. Mgmt. Corp., 2006-Ohio-4979, 12 (Franklin Cty. 2006). Even if Dr. Hauser made misstatements regarding "unnecessary aside" infonnation, they do not squarely relate to or directly impact his medical opinion. Dr. Hauser is not unclear or uncertain about his conclusion, nor does it appear that Dr. Hauser did not understand what he meant. Therefore, these misstatements, if the same can be called that, have no impact on and do not detract from Dr. Hauser's ultimate opinion that surgery was not necessary or appropriate. Dr. Hauser's report was not equivocal or ambiguous such that it should be removed from consideration.2 2. Dr. Hauser's conclusion that the conditions diagnosed in 2008 were resolved by prior surgery in 2004 was not inconsistent or eguivocal. Dr. Hauser properly concluded that the allowed conditions, even those newly added in 2008, had either resolved by prior surgery in 2004, or were no longer symptomatic such as to justify additional surgery in Despite that, Appellee argued that it was simply improbable that conditions first diagnosed in 2008 could be resolved by surgery performed four years earlier in R. at 23 (pgs. 7, 10); 36 (pg. 3-4). The Court of Appeals agreed and stated: "The statements in Dr. Hauser's reports that certain medical conditions were resolved in 2004 when the conditions did not materialize until later and were not recognized for purposes of workers' compensation until later still are also a concern." R. at 43 (pg. 6) (emphasis). As such, Appellee argued that Dr. Hauser's report must be removed from evidentiary consideration. Z Cf., State, ex rel. Ineersoll Rand Co. v. Indus. Comm., 2010-Ohio-5362, 3(Franklin Cty. 2010) (Dr. Pledger's statement that claimant was unemployable due to pain and severe neck limitations was in direct conflict with his earlier statement that claimant could perform sedentary work); State, ex rel. Carlson v. Avon Prods.. Inc., Ohio-6083, 44 (Franklin Cty. 2008) (finding inconsistencies in reports from one doctor that additional conditions were not related to workplace injury, but, thereafter, certifying temporary total disability based upon the same additional conditions); State, ex rel. Certified Oil Corp. v. Administrator. Ohio BWC, 2007-Ohio-3877, 9 (Franklin Cty. 2007) (where doctor's C-84 opined that claimant was not MMI yet the same doctor's office notes over the same time period found that claimant, indeed, had reached MMI). 14

20 Appellee and, apparently, the Court of Appeals, misinterpreted the medical evidence and the findings of Dr. Hauser - and even Dr. Watson - for that matter. Principally, Appellee mistook a "diagnosis" for an "administrative allowance." Simply because the new conditions were not "administratively allowed" until 2008 does not mean that they - or substantially similar - conditions did not exist or were treated by the prior surgery of In fact, the medical evidence demonstrated otherwise. The first MRI showed a "SLAP-type labral tear and a partial tear of the subscapularis tendon with medial subluxation of the long head of the biceps tendon, mild bicipital tendinopathy, and a high grade undersurface tear involving the distal anterior supraspinatus tendon fibers." R. 22 (pg. 84). Dr. Watson performed extensive surgery on these conditions as follows: "a right shoulder arthroscapic decompression with release of the coracoacromial ligament, anterior acromioplasty, and subacromial bursectomy." Id. (pg. 81). In addition, he performed an "extensive arthroscopic debridement including debridement of the partial thickness tear of the subscapularis tendon, debridement of partial thickness tear of the supraspinatus, debridement of the superior labrum anterior/posterior lesion, and debridement undersurface rotator cuff tendinitis." Id. Over four years later, a second MRI showed a "partial thickness articular sided tear involving the distal subscapularis tendon with associated medial displacement of the long head of the biceps tendon with mild tendinopathy" and a "mild enlargement and intermediate heterogenous signal intensity of the supraspinatus consistent with postsurgical change and at least moderate tendinopathy with associated bursal sided fraying." Id. (pg. 68). Importantly, both of the MRIs showed similar conditions, particularly, of the subscapularis tendon. Because of that, on May 30, 2008, Dr. Watson stated: "I am not sure anything should be added to the 15

21 diagnosis." Id. (pg. 46). Indeed, Dr. Watson noted that the claim was initially allowed for "right shoulder labral tear and right shoulder partial thickness tear of the rotator cuf " Id. He reported that the repeat MRI showed similar conditions in the nature of "articular-sided tearing of the distal subscapularis tendon, that is, tearing of the rotator cuff and severe irregularity of the superior labrum... consistent with his labral tearing." Id. Dr. Hauser noted that, at the time of his physical examination in 2009, he found no clinical manifestations of any of the allowed conditions. This made clear sense given that both the rotator cuff and labral tears were present (but not formally diagnosed or administratively allowed) in 2004 and that the earlier surgery helped to resolve, at least to some extent, those conditions. Rather, the only demonstrable condition was a ruptured biceps tendon which is a non-allowed condition in the claim. Reasoning that additional surgery would not be beneficial to a ruptured biceps tendon and that no further surgery was necessary on the right rotator cuff or labrum, Dr. Hauser found that the additional surgery was neither for the allowed conditions nor was it reasonable or appropriate. The Magistrate understood this. She explained that "no one disagreed that the 2008 MRI findings were similar to the 2003 MRI findings." R. at 35 (pg. 11). She explained that: Prior to the 2004 surgery, the MRI showed partial tear of the subscapularis tendon with medial subluxation of the long head of the biceps tendon. During the surgery in 2004, Dr. Watson corrected this condition by debriding the partial tear. Approximately four years following the surgery, a second MRI again revealed a partial thickness tear of the distal subscapularis tendon and medial displacement of the long head of the biceps tendon. The second MRI did not show a recurrence of the SLAPtype labral tear nor did it show any tearing involving the distal supraspinatus tendon fibers. Instead, the second MRI showed moderate tendonopathy with associated bursal sided frame at the supraspinatus tendon. 16

22 Id. The Magistrate farther noted that Dr. Hauser reported relatively normal range of motion findings with regard to Appellee's right shoulder. Id. Indeed, the only objective finding was that Appellee had the signs of a rupture of the long head of the biceps which was not part of the allowed conditions. Id. Thus, Dr. Hauser opined, and the Commission agreed, that it a nonallowed condition was causing Appellee's ongoing complications and all of the rotator cuff issues had resolved upon the prior surgery or were no longer symptomatic such to warrant surgery. Id. (pg. 12). Therefore, the Magistrate found that Dr. Hauser's report was "some evidence" upon which the Commission could rely and recommended a denial of the requested writ. The Magistrate may have read Dr. Hauser's report and its detail. However, even a lack of detail, alone, is insufficient to render an opinion equivocal or inconsistent. See, e.., State, ex rel. Light, v. Clermont Cty. Transit Bd., 2006-Ohio-5779, (Franklin Cty. 2006) ("While Dr. Berg might have provided more detail in his report regarding relator's disorder, the lack of detail does not equate [to] inconsistencies and disparities between the report and deposition. Extensive detail was not required before the commission could rely on Dr. Berg's opinion."). Nor does a misinterpretation of Dr. Hauser's medical opinion render it equivocal. See, e.., State, ex rel. Rankin, v. Cyned Trans. Corp., 2006-Ohio-2962, 30 (Franklin Cty. 2006) (relator's argument that doctor's report was inconsistent or equivocal was based purely upon a "misinterpretation of [the] report," and, therefore, "lack[ed] merit."). To the contrary, Dr. Hauser adequately explained his opinions and, therefore, his report should not be removed from evidentiary consideration. See, e.., Certified Oil Corp., Ohio-3877 at 11 (a doctor may adequately explain the contradictory or inconsistent opinion, rendering the medical opinion "some evidence" upon which the Commission may rely). Indeed, 17

23 even if the opinion is subject to inconsistency or equivocation, if the Commission may interpret it as consistent or unequivocal, that interpretation may be relied upon. See, e.. State, ex rel. Sears Roebuck Co., v. Indus. Comm:, 2007-Ohio-838, 46 (Franklin Cty. 2007) ("Even if Dr. Rutherford's report is subject to the interpretation that relator wishes to give it, the conunission was not required to give it an equivocal or inconsistent interpretation."). There is simply not the type of contradiction or inconsistency warranting mandamus relief in the case before the Court. Cf., Baja Marine Corp. v. Indus. Comm., 114 Ohio St. 3d 70, 72 (2007) (upon review of a "series of reports that are alternatively complimentary and contradictory," the Court issued a writ vacating an order awarding TTD based upon reports in which the same physician opined that claimant could work in one report yet, that claimant could not work in a report generated ten days later). Dr. Hauser's opinion was unequivocal, consistent, and medically sound. He wrote that the rotator cuff conditions, which were evidenced on both the 2003 and 2008 MRIs (to some extent), and addressed during the 2004 surgery, were resolved upon clinical presentation. The only condition that continued to manifest clinically was a non-allowed condition - the ruptured biceps tendon. Thus, he found that surgery was inappropriate for the rotator cuff tears. This unequivocal and consistent medical opinion was properly relied upon by the Commission to deny surgery. 3. Dr. Hauser properly accepted all of the allowed conditions in the claim. Appellee argues that Dr. Hauser did not accept the newly allowed conditions diagnosed after the 2008 MRI. R. at 23 (pg. 7, 9); 26 (pg. 4). Yet, Dr. Hauser was aware of and accepted all of the allowed conditions even the newly allowed conditions. All of the allowed conditions were clearly listed in the heading of the first page of the report. R. at 22 (pg. 14). Dr. Hauser wrote: "it is my opinion, after taking a history, physical examination, and accepting his current 18

24 allowed conditions in this claim, that [Appellee] has been a very active individual." Id. (pg. 19) (emphasis). Notwithstanding, Appellee argued that: "Even though the conditions for which surgery has been requested have been allowed by the Industrial Commission, Dr. Hauser states `[i]t is my opinion that it is probable that the changes in [Appellee's] right shoulder have come on totally unrelated to his work-related injury on 10/02/2003. The records indicate he has been fairly active."' R. at 23 (pg. 7-8) (internal citations omitted). Appellee concluded that "[t]hrough this statement, Dr. Hauser clearly did not accept the already allowed claim conditions, making his report unreliable." Id. (pg. 8). Appellee's argument is meritless. As noted by the Magistrate: "[Dr. Hauser] correctly listed all of the conditions allowed in [Appellee's] claim including the newly allowed conditions." R. at 43 (pg. 11). The Magistrate further explained, "[w]hile Dr. Hauser does opine that these newly allowed conditions are probably not related to the October 2003 injury, he never rejects them as being allowed. It is simply that he believes it is the non-allowed injury to [Appellee's] biceps tendon that is causing his symptoms." Id. (pg. 12) (emphasis added). The Magistrate correctly concluded that "[r]eading Dr. Hauser's complete report, as opposed to taking one sentence out of context, he did not reject the new conditions; he opined that it was a non-allowed condition that was causing [Appellee's] problems." Id. (emphasis added). The Magistrate's reasoning is similar to the Tenth District's in Carlson v. Avon Prods., Inc., 2008-Ohio-6083, 1116, 49 (Franklin Cty. 2008). In that case, claimant sought a writ of mandamus ordering the Industrial Commission to vacate its order denying his request for temporary total disability, based, in part, upon the reports of Dr. Vogelstein. Claimant argued that Dr. Vogelstein's report did not constitute "some evidence" because he failed to accept all of 19

25 the allowed conditions in the claim, including newly allowed conditions. Id. at 14. Dr. Vogelstein examined the claimant in 2004 and wrote that the only allowed condition - a lumbar sprain - had reached maximum medical improvement and that any ongoing complications were the result of pre-existing back problems. Id. at 3. Thereafter, the claim was amended to include aggravation of pre-existing conditions and claimant sought temporary total disability. Id. at 5-6. In an addendum report, Dr. Vogelstein indicated his "acceptance of the newly allowed conditions," but reiterated his belief that "the 2003 injury did not result in aggravation of [claimant's] existing back injury." Id. at 16. Yet, the court did not find Dr. Vogelstein's opinion to be fatal to his report, given that he accounted for the newly allowed conditions as follows: "ifthe 2003 injury did result in aggravation of the pre-existing back injury... [claimant] was not temporarily and totally disabled as a result of the injury." Id. at 16. Dr. Hauser accepted all of the allowed conditions in the claim. He repeatedly stated so in his report and there is simply no indication that he rejected any of the allowed conditions. As the Magistrate noted Dr. Hauser simply found no ongoing objective manifestations of any of the allowed conditions. Rather, he found that Appellee's ongoing symptoms were related to a nonallowed condition. Even if Dr. Hauser had expressed an opinion that the newly allowed conditions were unrelated to the work event - which he did not - that opinion was independent from his opinion regarding the necessity for surgery. Similar to the situation in Carlson, Dr. Hauser properly expressed his opinion regarding the causal relationship of the newly allowed conditions, yet, concluded that if they, indeed, arose out of the original injury, surgery would still not be necessary or appropriate. Thus, Dr. Hauser's report constituted "some evidence" upon which the Commission could rely and the requested writ should be denied. 20

26 4. Dr. Hauser was free to rely upon and interpret the surveillance evidence based upon his medical training and observations. Appellee also asserted that Dr. Hauser inappropriately relied upon the surveillance evidence to determine that Appellee was "active" during his March 10, 2009 workout at a fitness club. R. at 23 (pg. 10). Appellee argued that the video only showed Appellee "following Dr. Watson's instructions to strengthen his shoulder in an appropriate manner with light weights." Id. (pg. 11). The Magistrate disagreed, however, correctly noting that "[t]he surveillance evidence is subject to interpretation and the magistrate cannot say that either Dr. Hauser or the commission has interpreted that evidence incorrectly or that their interpretation constitutes an abuse of discretion." R. at 35 (pg. 13). Indeed, despite Appellee's assertion that the workout was prescribed by Dr. Watson, the Magistrate noted that she could not "find where Dr. Watson recommended that [Appellee] lift light weight and [Appellee] has not cited to any portion of the evidence." Id. (pg. 12). Substituting its judgment for that of the Commission, and the medical expert, however, the Court of Appeals rejected the findings of the Magistrate and, instead, found as another "inconsistency" in Dr. Hauser's report: Dr. Hauser indicated that [Appellee] was 5'11", 2251bs. and age 38 and "very muscular." The fact that [Appellee] used weights in the 50 to 75 pound range is an indication that he is experiencing physical problems, not a disproof of such problems. R. at 43 (pg. 5). Could there be a more dramatic example of a court substituting its judgment for that of the Commission and reweighing the evidence? Here the court actually made a finding of both a person's physical condition and disability based on its notion of the demands of a workout, where there was credible medical evidence on the subject. 21

27 Honda provided two surveillance videos. R. at 22 (pgs. 24, 54). In July 2008, a surveillance report revealed that Appellee was working for a property management company performing many laborious tasks, including, drywall, plumbing, electrical work, welding and snowplowing. R. at 22 (pg. 55). Later, in February-March 2009, another surveillance video showed Appellee lifting lb. weights repetitiously for over an hour. R. at 24. Dr. Hauser, who evaluated Appellee on the issue of whether surgery was reasonably necessary or appropriate, determined that it was not based, in part, upon the latter of the surveillance videos. R. at 14 (pg ). Dr. Hauser noted that Appellee was seen lifting a "significant amount of weight," that he was lifting dumbbells "well above his head," and doing "bench presses." Id. (pg. 18). He was well within his medical expertise to opine that this type of activity was contrary to the need for surgical intervention. Indeed, on October 13, 2008, after a review of the same surveillance, Dr. Watson explained that "surveillance showing him being involved in repetitive lifting complicates matters as far as could these activities also cause injury or aggravate things." Id. (pg. 45). The Commission appropriately evaluated the credibility of those opinions and concluded that surgery was not necessary. Id. (pg. 7). As the Magistrate correctly noted, the surveillance was capable of the interpretation given by Dr. Hauser and the Commission did not abuse its discretion in relying upon it. R. at 35 (pg. 13). Accordingly, a writ should not issue. 22

28 IV. CONCLUSION: For the reasons set forth above, Appellant respectfully requests that the Court reverse the lower court's decision and deny the requested writ of mandamus. obert A.1Glinor ( ), Counsel of Record VORYS SATER SEYMOUR AND PEASE LLP 52 East Gay Street P.O. Box 1008 Columbus, Ohio Telephone: (614) Fax: (614) raminorna,vor s. Counsel for Appellant, Honda of America Mfg., Inc. CERTIFICATE OF SERVICE I certify that a copy of this Merit Brief of Appellant Honda of American Mfg. Inc. was sent by ordinary U.S. mail to counsel for Appellee, Mr. Matthew George, Ms. Karen D. Turano, Charles Zamora Co., LPA, 447 East Mound Street, Columbus, Ohio 43215, and counsel for Appellant, Industrial Commission of Ohio, Mr. Joseph C. Mastrangelo, Assistant Attorney General, Workers' Compensation Section, 150 East Gay Street, 22d Floor, Columbus, Ohio , this 22nd day of March, Counsel for Appellant Honda of America Mfg., Inc. 23