State ex rel. Barnes v. Industrial Commission

114 Ohio St. 3d 444
CourtOhio Supreme Court
DecidedSeptember 19, 2007
DocketNo. 2006-1404
StatusPublished
Cited by6 cases

This text of 114 Ohio St. 3d 444 (State ex rel. Barnes v. Industrial Commission) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. Barnes v. Industrial Commission, 114 Ohio St. 3d 444 (Ohio 2007).

Opinion

Per Curiam.

{¶ 1} Appellant, Jeffrey L. Barnes, was declared to have attained maximum medical improvement in 2002. Two years later, after a new mode of treatment and an exacerbation of the allowed conditions, he sought renewed temporary total disability compensation. Appellee Industrial Commission of Ohio denied his request without addressing either of these factors. We must determine whether the commission abused its discretion in so doing.

Case Background

{¶2} Barnes injured his back at work on May 26, 2000, and a workers’ compensation claim was allowed for “sprain lumbosacral; disc degeneration at L3-4 and L4-5; central disc protrusion at L4-SI.” He began receiving temporary total disability compensation shortly thereafter.

{¶ 3} The parties do not dispute that in late 2001, the Bureau of Workers’ Compensation granted Barnes’s request for epidural steroid injections. For reasons unknown, Barnes delayed those injections.

{¶ 4} On March 18, 2002, Barnes’s employer, Three Little Pigs, Ltd., d.b.a. Hoggy’s, moved to terminate temporary total disability compensation based on maximum medical improvement. The commission granted that motion:

{¶ 5} “This finding was made in reliance upon the 02/12/2002 report of Dr. Zellers and the examination and addendum reports from Dr. Season. The Staff Hearing Officer has considered the claimant’s argument that both of those reports were conditioned upon the claimant not undergoing specific named further treatment. In light of the fact that the claimant has not undergone either the epidural injections or the rehabilitation and work hardening programs discussed in those two reports, notwithstanding the past significant amount of time, the Staff Hearing Officer finds that these reports plainly and properly support the finding of maximum medical improvement, and constitute the weight of the evidence. It is particularly noteworthy that although epidural injections were approved as long ago as 11/06/2001, they have not yet been done.” That order became final.

{¶ 6} In March 2003, Barnes saw Dr. Charles B. May because of continuing low back pain. Dr. May recommended that Barnes see a neurosurgeon. On June 23, Barnes met with Dr. Robert A. Dixon, who performed a diskogram that revealed a 50 percent “loss of disk height” and “grade II tearing.” Dr. Dixon recom[446]*446mended a PLDD (pericutaneous laser disc decompression) procedure, which the bureau approved on September 19, 2003. That procedure was successfully-performed and was followed by an IDET (intradiscal electrothermal therapy) annuloplasty on November 4, 2003. A physical-medicine rehabilitation program was to complement those procedures.

{¶ 7} Dr. Dixon recommended that Barnes change jobs because of the heavy lifting, bending, and twisting that his former position involved, and Barnes began seeking work consistent with the physical restrictions he was given. In April 2004, while looking for work, Barnes experienced sudden radiating right-leg pain that caused his leg to buckle and him to fall. Immediately, Barnes experienced increased severe back pain. He was re-examined by Dr. May on April 28, 2004, and went to the emergency room the next day because of increasing back pain.

{¶ 8} On June 8, 2004, Barnes moved to have temporary total disability compensation reinstated from April 20, 2004, forward. A district hearing officer denied that request on September 10, 2004:

{¶ 9} “Temporary total compensation was terminated by the orders of 05/31/2002 and 07/22/2002 on the basis of maximum medical improvement. Both orders listed the lack of treatment as a factor. Epidural injection had been authorized, but the injured worker did not undergo such in 2002. In 2003 treatment became more active. However, the hearing officer does not feel that the renewed treatment changes the status of the injured worker’s extent of disability as found by the 05/31/2002 and 07/22/2002 orders.”

{¶ 10} A staff hearing officer affirmed:

{¶ 11} “[Tjhere are no new and changed circumstances since the previous finding of the Staff Hearing Officer on 07/22/2002 that the injured worker has reached maximum medical improvement. The injured worker argues that since that finding of maximum medical improvement on 07/22/2002, the injured worker has undergone epidural injections and has been enrolled in vocational rehabilitation. However, the Staff Hearing Officer is not persuaded by this argument. The Staff Hearing Officer order on 07/22/2002 indicates that the epidural injections had been approved prior to his finding of maximum medical improvement, but that the injured worker had yet to undergo those epidural injections as of 07/22/2002. That order terminating temporary total compensation for the reason of maximum medical improvement also indicated that rehabilitation had been recommended, but that the injured worker had not yet undergone these services. The fact that the injured worker later undergoes the recommended treatment does not persuade the Staff Hearing Officer today that the injured worker has again become temporarily and totally disabled.” Further appeal was refused.

{¶ 12} Barnes filed a complaint in mandamus in the Court of Appeals for Franklin County, alleging that the commission had abused its discretion in [447]*447refusing to reinstate temporary total disability compensation. Barnes argued that the commission had failed to discuss either the more active treatment that he had commenced in 2003 or the April exacerbation as new and changed circumstances warranting renewed compensation. He asked for a writ of mandamus ordering the commission to reinstate temporary total disability as of April 20, 2004, or that the cause be returned for further consideration. The court of appeals denied the writ after concluding that the lack of discussion established that Barnes had never raised these points administratively.

{¶ 13} Barnes now appeals to this court as of right.

Legal Analysis

{¶ 14} Maximum medical improvement is “a treatment plateau (static or well-stabilized) at which no fundamental functional or physiological change can be expected within reasonable medical probability in spite of continuing medical or rehabilitative procedures. An injured worker may need supportive treatment to maintain this level of function.” Ohio Adm.Code 4121-3-32(A)(l). R.C. 4123.56(A) designates maximum medical improvement as one of four statutory bases for denying temporary total disability compensation.

{¶ 15} The litigants do not challenge the initial maximum-medical-improvement declaration or the principle that temporary total disability compensation can be reinstated, notwithstanding that declaration, if new and changed circumstances demand. See State ex rel. Bing v. Indus. Comm. (1991), 61 Ohio St.3d 424, 426, 575 N.E.2d 177. We have recognized that a temporary worsening, or flare-up, of a claimant’s condition can warrant renewed temporary total disability compensation as the claimant struggles to return to the former baseline. Id. at 427, 575 N.E.2d 177. A mere increase in treatment or change in the treatment method does not, however, automatically compel renewed temporary total compensation. Increased or different treatment does not automatically establish that the claimant’s condition has worsened.

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Bluebook (online)
114 Ohio St. 3d 444, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-barnes-v-industrial-commission-ohio-2007.