State ex rel. George v. Industrial Commission

Tyack, Judge. ¶ 1 Annette George has filed this action in mandamus, seeking a writ to compel the Industrial Commission of Ohio to grant her temporary total disability (“TTD”) compensation. ¶ 2 In accord with Loc.R. 12, this case was referred to a magistrate to conduct appropriate proceedings. The parties stipulated the pertinent evidence and filed briefs. The magistrate then issued a magistrate’s decision, which contains detailed findings of fact and conclusions of law and is appended to this decision. The magistrate’s decision includes a recommendation that we deny the request for a writ. ¶ 3 Counsel for George has filed objections to the magistrate’s decision. Counsel for the commission has filed a memorandum in response. Counsel for BP America, Inc. (“BP”), her employer at the time of her injuries, has also filed a memorandum in response. This case is now before this court for a full, independent review. ¶ 4 George slipped on a pile of snow while performing duties for BP at a service station. The slip occurred on January 30, 2009. George had prior injuries to both of her knees. George claimed initially that she had aggravated a former injury to her right knee, which she believed had a torn anterior cruciate ligament (“ACL”). ¶ 5 Cyril E. Marshall, M.D., her primary treating physician, diagnosed her conditions as right knee instability and right knee sprain. She was also diagnosed as having laxity, or the tendency for a joint or ligament to move when force is applied to it. ¶ 6 A staff hearing officer eventually recognized the condition of “right knee sprain” after BP resisted the recognition of any new conditions at all. ¶ 7 George was seen by William R. Bohl, M.D., at the request of BP for an independent medical exam. The commission relied upon Dr. Bohl’s reports in deciding that George was not entitled to TTD compensation. In this mandamus 698 action, counsel for George argues that those reports are equivocal and not of sufficient evidentiary value to support the commission’s finding. ¶ 8 Counsel for George lists three specific objections: The Magistrate erroneously denied Ms. George’s request for a writ of mandamus, finding that that [sic] medical reports of Dr. Bohl are not equivocal and, therefore, are competent evidence upon which the Commission could have relied to deny Claimant’s application for Temporary Total Disability. The Magistrate erred by not addressing the FACT that Respondent BP America intentionally delayed certifying Ms. George’s claim thereby preventing her from being able to receive treatment, and then denying temporary total disability for the same period as Ms. George was not actively treating. The Magistrate erred by finding that the “instability” in Ms. George’s knee was a distinct allowable medical condition rather than a symptom which needed to be additionally allowed in her claim prior to her being entitled to receive temporary total disability. ¶ 9 Although BP has fought recognition of any condition at all as a result of George’s fall in January 2009, the claim has now been recognized administratively for at least right knee sprain. George sprained her knee when she fell. She was working before the fall, and now she is not working. BP, by fighting recognition of her new injury, has slowed her ability to get the diagnostic tests and treatment needed to help her recover from the fall. However, this delay does not equate to entitlement to TTD compensation. The delay could lengthen the time for which George receives TTD compensation, but is not an independent ground for granting or denying TTD compensation. The second objection to the magistrate’s decision is overruled. ¶ 10 The situation regarding George’s entitlement to TTD compensation is complicated by a report of a radiologist as the result of an MRI, which the radiologist viewed as evidencing no ACL tear. At one point, Dr. Bohl seemed certain that George had suffered an ACL tear during the 2007 fall (not the 2009 fall). This led to his concluding that her current inability to work was a result of the 2007 injury, not the 2009 injury. Dr. Bohl simply disagrees with the findings of this MRI. If the MRI report is correct, Dr. Bohl’s diagnosis is wrong. ¶ 11 Dr. Marshall, George’s primary treating physician, viewed her inability to work as the result of right knee sprain and resulting right knee instability. These are not separate conditions. The sprain made it necessary to wear a knee brace, which resulted in weakness to her right thigh. The weakness in her right thigh caused right knee instability or an increase in right knee instability. The view of the staff hearing officer (“SHO”) that Dr. Marshall’s reports relied on a nonrecognized condition is not warranted. Dr. Marshall’s reports should not 699 have been discounted and could constitute some evidence to support an award of TTD compensation. ¶ 12 Dr. Marshall’s reports correspond to a portion of one of Dr. Bohl’s reports, which stated: The sprain to the knee on 01/30/2009 may have caused additional tearing of the partial tear of the anterior cruciate ligament and definitely caused some tearing of ligamentous structures around the knee causing the pain and swelling following that injury. This resulted in the subsequent moderate amount of right thigh atrophy. At the present time it is that right thigh atrophy and weakness in the leg that has caused her patellar malaignment and previous laxity from her prior anterior cruciate ligament injury to become more symptomatic than it would otherwise be. She will probably continue to experience the sensation of instability with accompanying pain at least until those weakened muscles can be rehabilitated with physical therapy. ¶ 13 Under the circumstances, Dr. Bohl cannot really be seen as reporting that George’s right knee sprain was ever resolved and therefore not a cause of her inability to work. If other portions of his reports can be construed to state in that manner, then the reports are equivocal. The swelling may have subsided, and some of George’s pain may have been lessened, but the thigh’s atrophy that resulted from the sprain remained and made work at a BP station impossible, even according to Dr. Bohl’s report set forth above. ¶ 14 In technical terms, Dr. Bohl’s reports, taken together, do not constitute some evidence to support the commission’s denial of TTD compensation based upon her 2009 fall. ¶ 15 The first objection to the magistrate’s decision is sustained. ¶ 16 As to the third objection, we have observed that George’s current knee instability is the result of the treatment for her right knee sprain. To the extent that the magistrate’s decision could be viewed as stating otherwise, the objection is sustained. ¶ 17 In summary, we sustain the first and third objections to the magistrate’s decision. We overrule the second objection. As a result, we grant a writ of mandamus compelling the commission to vacate its orders denying TTD compensation for George. The commission shall conduct further proceedings to determine if Annette George is entitled to TTD compensation without relying on the reports of Dr. Bohl. Objections sustained in part and overruled in part; writ granted. 700 Connor, J., concurs. Bryant, P.J., concurs in part and dissents in part.