State ex rel. Jackson Tube Services, Inc. v. Industrial Commission

99 Ohio St. 3d 1
CourtOhio Supreme Court
DecidedMay 7, 2003
DocketNo. 2002-0603
StatusPublished
Cited by8 cases

This text of 99 Ohio St. 3d 1 (State ex rel. Jackson Tube Services, Inc. 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. Jackson Tube Services, Inc. v. Industrial Commission, 99 Ohio St. 3d 1 (Ohio 2003).

Opinion

Per Curiam.

{¶ 1} Appellee-claimant James R. Alexander’s workers’ compensation claim . was allowed for a torn left rotator cuff and other injuries. In May 1998, Dr. Don D. Delcamp performed an open surgery on the shoulder and repaired two tears. Temporary total disability compensation (“TTC”) was paid thereafter.

{¶ 2} Despite the operation, claimant continued to have significant shoulder problems. Dr. Steven S. Wunder examined claimant on behalf of appellant-employer, Jackson Tube Services, -Inc. (“JTS”), and opined that claimant had reached maximum medical improvement. Appellee Industrial Commission of Ohio terminated TTC based on that report.

{¶ 3} On May 26, 2000, claimant sought to change doctors and get further treatment. Claimant submitted office notes and reports from Dr. Jonathan J. Paley. In his March 29, 2000 entry, Dr. Paley offered a preliminary diagnosis of “1. Left shoulder rotator tear. 2. Left shoulder subacromial impingement. 3. Left shoulder AC joint traumatic degeneration. 4. Cervical spine strain.” He further proposed:

{¶ 4} • “I feel that this gentleman’s problems all stem from his 1999 work injury * * *. Since he never had a shoulder arthroscopy performed, I feel that substantial pathology is still being missed in the form of either a glenoid labral tear, an intra-articular flap tear of the delaminating variety and possibly even a full thickness rotator cuff tear. The Bigliano curve that is present is indicative of considerable impingement. The AC joint also is very symptomatic in this individual and is also undoubtedly a cause of his discomfort and failure of the shoulder procedure to provide the relief that is expected.

{¶ 5} “I feel that this individual will only improve after he has had a proper shoulder procedure performed. I would recommend first a video arthroscopy to [2]*2delineate the exact cause of the intra-articular problem and to look at the biceps tendon, intra-articular cuff and the glenoid labrum. Further, I would recommend proceeding with either an open rotator cuff repair should the cuff be torn or also proceeding with the subacromial decompression and distal clavicle excision to be done arthroscopically. I have discussed these things with the patient at length. The patient feels that he may well require an attorney to get the needed conditions allowed. I have no problems being supportive of him as I feel that this problem is directly attributable to his left shoulder rotator cuff. By no means is THIS INDIVIDUAL MAXIMALLY MEDICALLY IMPROVED. He REQUIRES CONSIDERABLE SURGICAL WORK TO BE DONE ON HIS LEFT SHOULDER AND SHOULD IMPROVE ONCE THIS IS COMPLETED.” (Emphasis sic.)

{¶ 6} In a June 8, 2000 letter, Dr. Paley additionally reported:

{¶ 7} “It is well documented in the radiology and orthopaedic literature that MRI’s are notorious for missing shoulder pathology. This especially pertains to the glenoid labrum. As a matter of fact more often times than not, a glenoid labral tear will be missed, but yet it is this very same structure that can be incapacitating and cause further disability until it is treated surgically.

{¶ 8} “Without question I feel that this individual’s problems are directly attributable to his work related problems. It should further be noted that this individual’s surgery was preformed [sic] in an open fashion and not without [sic] an arthroscopy. It is a well accepted fact that considerable and substantial shoulder pathology will be missed without properly arthroscoping the shoulder first prior to an open rotator cuff procedure.”

{¶ 9} Approximately two weeks later, claimant moved for surgical authorization and TTC. JTS objected, asserting that two of the four conditions that Dr. Paley diagnosed were not allowed in the claim. Claimant responded that without surgery, there was no way to definitively identify the conditions that were causing his problems. Apparently the possibility of authorizing surgery for inspection and diagnosis — but without any treatment — was presented. Dr. Paley quickly disavowed that possibility:

{¶ 10} “Without question, I feel that Mr. Alexander has suffered more extensive injury as a result of his fall injuring his left shoulder. As a general rule, when a patient has a left shoulder rotator cuff tear, there is always additional pathology such as damage to the acromial clavicular (AC joint), as well as sometimes to the glenoid labrum. These are all things that can be treated and taken care of at the same time as the torn rotator cuff. His radiographs are consistent with a left shoulder subacromial impingement which, in fact, causes rotator cuff tear when he fell landing on his shoulder. Had he not fallen injuring the shoulder, then chances are he would never have experienced problems with that involved extremity.

[3]*3{¶ 11} “As a physician I cannot simply do a diagnostic arthroscopy and not treat the underlying pathology while arthroscoping the shoulder joint. This is unethical and would place the patient at additional risk for potential complications such as an infection, a pulmonary embolus, reflex empathetic [sic] dystrophy, prolonged recovery, etc. It would further subjugate [sic] him to a second arthroscopic procedure which would necessitate further anesthesia which is not without some risk in and of itself.

{¶ 12} “This is why the diagnostic arthroscopy should be performed but, at the same time, the appropriate treatment should be instituted for this problem. I expect to find that he probably will have some glenoid labral pathology; however, this will not add anything further to the cost of the surgery since the treatment of the rotator cuff tear in and of itself includes taking care of the glenoid labrum. I am simply trying to delineate all of the conditions this individual has for future record.”

{¶ 13} A district hearing officer denied claimant’s motion in its entirety, citing the nonallowed conditions. A staff hearing officer vacated that order, writing:

{¶ 14} “Claimant’s request for authorization and payment for medical services for the treatment of the allowed conditions is granted. Further, the Hearing Officer finds that Dr. Paley’s request for authorization and payment for arthroscopic surgery on the left shoulder for diagnostic purposes is appropriate and necessary for the treatment of the claimant’s left shoulder. Therefore, the arthroscopic procedure is authorized and payment is ordered.

{¶ 15} “Claimant’s request for the payment of temporary total disability compensation from 5-1-00 to 8-01-00 is denied. Claimant’s condition was found to have reached maximum medical improvement as of 4-20-00. There is no evidence of any new or changed circumstances which would reinstate temporary total disability compensation. However, it is the finding of the Staff Hearing Officer that beginning on the date of the arthroscopic surgery and continuing for a usual and customary recuperative period, temporary total disability compensation is to be paid upon submission of appropriate medical evidence.

{¶ 16} “This order is based upon the medical reports of Dr. Paley (6-8-00, 7-28-00) * * *.”

{¶ 17} Further appeal was refused. JTS responded on June 8, 2001, with a complaint in mandamus in the Court of Appeals for Franklin County.

{¶ 18} Claimant had undergone arthroscopic surgery on November 20, 2000. Dr. Paley’s postoperative diagnosis was similar to his preoperative, namely “Left shoulder rotator cuff tear. Subacromial impingement.

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Cite This Page — Counsel Stack

Bluebook (online)
99 Ohio St. 3d 1, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-jackson-tube-services-inc-v-industrial-commission-ohio-2003.