State ex rel. Dayton Foods Ltd. Partnership v. Unger

104 Ohio St. 3d 299
CourtOhio Supreme Court
DecidedDecember 15, 2004
DocketNo. 2004-0290
StatusPublished

This text of 104 Ohio St. 3d 299 (State ex rel. Dayton Foods Ltd. Partnership v. Unger) 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. Dayton Foods Ltd. Partnership v. Unger, 104 Ohio St. 3d 299 (Ohio 2004).

Opinion

Per Curiam.

{¶ 1} Appellee-claimant, Joseph Unger, was the bakery manager for a store owned by appellant, Dayton Foods Limited Partnership, a self-insured employer. He was hurt on June 7, 2000, when a cabinet weighing over 100 pounds fell on him. Dayton Foods unsuccessfully contested the resulting workers’ compensation claim, which was ultimately allowed for “left shoulder/arm sprain, left shoulder AC arthralgia with evidence of rotator cuff tendonitis and impingement [300]*300syndrome.” Since that time, Dayton Foods has contested surgical treatment and temporary total disability compensation (“TCC”) at almost every turn. Facts relating to Unger’s attempts to get surgical treatment and TCC overlap, making a strictly chronological recitation of the facts impractical. Instead, we will set forth the facts relating to each issue separately, bringing them together only as they merge administratively and judicially.

Surgical-Treatment Authorization

{¶ 2} On December 7, 2000, Unger was examined, at Dayton Foods’ request, by Dr. Jose Chavez. Confining his exam to what was then the only allowed condition — left shoulder/arm sprain — Dr. Chavez did not comment on Unger’s rotator cuff. He felt that Unger’s allowed condition had reached maximum medical improvement (“MMI”) and attributed Unger’s continuing left-arm difficulties to a cervical disc condition.

{¶ 3} Dr. Chavez’s determination that Unger’s left shoulder sprain had reached MMI was apparently the impetus for Dayton Foods’ refusal thereafter to authorize further treatment. From at least February 2001, Unger’s physician, Dr. Kevin Paley, suspected that Unger’s rotator cuff had also been injured and made repeated requests for authorization of an MRI. Dayton Foods denied those requests.

{¶ 4} On June 19, 2001, Unger was examined by Dr. Wayne C. Woodard. Dr. Woodard also suspected a rotator-cuff injury and recommended an MRI. He also believed that Unger had not reached MMI.

{¶ 5} On June 28, 2001, appellee Industrial Commission of Ohio held a hearing. Authorization for an MRI followed those proceedings, and the procedure was performed on August 14, 2001. The administering doctor concluded:

{¶ 6} “A small subchondral cyst is seen in the posterior humeral head. No bone marrow edema is seen to suggest bone contusion or fracture. No significant joint effusion is noted. A type I acromion process is present. No significant left acromioclavicular joint hypertrophy is seen. The tendon of the long head of the biceps muscle is in its expected location, in the bicipital groove. The glenoid labrum is grossly intact. No rotator cuff tear is identified. There is a 9.0 x 7.0 x 5.0 millimeter object noted along the anterior aspect of the humeral head, the signal characteristics of which follow those of bone, possibly representing a loose body.”

{¶ 7} On October 18, 2001, the administering doctor submitted this addendum to the MRI report:

{¶ 8} “I have been asked by Dr. Paley to review this examination with specific attention to the possibility of rotator cuff tendonitis rather than a tear. On further review of the examination, there is some minimal low-grade signal [301]*301abnormality seen in the mid-fibers of the supraspinatus tendon consistent with tendonosis. This could represent mild tendonitis or tendon degeneration.”

{¶ 9} This addendum later triggered Dayton Foods’ assertion that Dr. Paley had pressured the MRI radiologist into finding some evidence of rotator-cuff injury.

{¶ 10} Dr. Paley’s office notes from autumn 2001 recommend an arthroscopic evaluation of the shoulder, a surgical decompression, and removal of the loose body shown on the MRI. On October 29, 2001, Dr. Paley asked Dayton Foods to authorize these procedures.

{¶ 11} In response, Dayton Foods had Unger examined by Dr. Steven Wunder on November 6, 2001. Dr. Wunder believed that surgery was unnecessary, writing:

{¶ 12} “It is my understanding this claim has been recognized and allowed for a left shoulder strain, left shoulder rotator cuff tendonitis, and left shoulder rotator cuff tear. I believe these conditions from the industrial injury have resolved. The MRI scan was unremarkable for a rotator cuff tear. There was no evidence of impingement on the MRI, and there was a type I acromion and no AC joint hypertrophy. Furthermore, I do not believe that the loose body was related to the industrial injury. Quite clearly, there was no evidence of a bone contusion, fracture or joint effusion to suggest trauma as the cause of the loose body.”

{¶ 13} From that point, dueling medical reports came to the forefront. On December 21, Dr. Paley responded to Dr. Wunder’s report:

{¶ 14} “In reviewing Dr. Wunder’s medical report, I do not follow his line of reasoning. Dr. Wunder accurately describes the history of the injury as well as the subsequent care. On the evaluation by Dr. Wunder, Mr. Unger clearly continues to be quite symptomatic. According to Dr. Wunder’s physical examination, Mr. Unger has rotator cuff impingement signs. He also has painful range of motion of the left shoulder. Dr. Wunder does not adequately assess the integrity of the rotator cuff with resisted testing.

{¶ 15} “It is obvious based on the examination by Dr. Wunder that Mr. Unger continues to be quite symptomatic with evidence clinically of rotator cuff tendonitis. This corresponds well with the MRI findings that were previously obtained on Mr. Unger’s left shoulder. His examination also corresponds well with multiple other physical examinations including that of myself and Dr. Woodard who like myself is a Board Certified Orthopedic Surgeon with great expertise in the examination of shoulder injuries. I do not understand how Dr. Wunder can state that Mr. Unger’s conditions from the industrial injury have resolved when [302]*302he has such continued clinical findings of left shoulder pain, weakness, and impingement signs.

{¶ 16} “* * *

{¶ 17} “I also take exception with Dr. Wunder’s assessment that the MRI does not show any evidence of a bone contusion, joint effusion, or evidence of acute trauma. The MRI was obtained on August 14, 2001, which is approximately 14 months after the injury. Anybody with any reasonable medical training should know that an MRI obtained 14 months after an acute injury will not show acute evidence of an injury to the bone such as a bone contusion, fracture, or joint effusion. Mr. Unger was found to have a large loose body within the shoulder joint on the MRI of August 14, 2001. Individuals do not just have loose bodies within the shoulder. A specific injury must occur to cause a loose body to form. Mr. Unger has no past history of problems with the left shoulder prior to the accident of June 7, 2000. The mechanism of injury of a large shipping cabinet falling on him could, in my opinion, be the source of this loose body in addition to the injury to the rotator cuff.

{¶ 18} “I am quite concerned, having reviewed many of Dr. Wunder’s independent medical examinations over the year, about the accuracy of his assessment with regard to the injured worker. I have not had the pleasure of reviewing an independent medical examination by Dr. Wunder where he does not come to the conclusion where the patient has reached maximum medical improvement. Mr. Unger categorically has not reached maximum medical improvement because he continues to be quite symptomatic and has not completed care.

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Bluebook (online)
104 Ohio St. 3d 299, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-dayton-foods-ltd-partnership-v-unger-ohio-2004.