State ex rel. Baja Marine Corp. v. Industrial Commission of Ohio

Per Curiam. ¶ 1 In this direct appeal, appellant-employer Baja Marine Corporation (“BMC”) challenges the evidence underlying the appellee Industrial Commission of Ohio’s award of wage-loss compensation to Cynthia S. Eggelston. Eggelston was injured at work in 1999, and a workers’ compensation claim was allowed for “cervical strain/sprain; thoracic strain/sprain; lumbosacral strain/sprain; aggravation degenerative discs L-4, L-5.” The Industrial Commission of Ohio awarded Eggelston temporary total disability benefits. In 2004, she moved for an additional allowance for aggravation of pre-existing disc degeneration, additional temporary total disability compensation, and wage-loss compensation. ¶ 2 In response to these motions, reports were submitted by Dr. Sushil M. Sethi, an independent medical examiner, and Dr. Michael R. Viau, Eggelston’s personal physician. Dr. Sethi examined Eggelston on May 24, 2004. He opined that Eggelston had reached maximum medical improvement. He acknowledged the presence of degenerative changes, but attributed them to the aging process and did not believe that they were aggravated by the industrial injury. Dr. Sethi concluded that overall, Eggelston’s physical findings did not substantiate her subjective complaints and that any back symptoms that might exist were unrelated to her industrial injury. ¶ 3 Dr. Viau submitted three reports on commission forms. On April 30, 2004, Dr. Viau attributed all of Eggelston’s symptoms to an “[aggravation of preexisting disc degeneration L-3,4 and L-2,3,” a diagnosis that had nothing to do with Eggelston’s workers’ compensation claim. The report did not mention any of Eggelston’s allowed conditions as causative or contributing factors. In a June 28, 2004 report, however, Dr. Viau attributed Eggelston’s problems exclusively to “lumbosacral sprain/strain,” with no mention of the degenerative condition discussed so prominently two months before. ¶ 4 The third report from Dr. Viau, on June 18, 2004, released Eggelston to part-time light-duty work. Curiously, the June 28 report — which was generated by the same examination — said that Eggelston could do no work whatsoever. ¶ 5 On July 12, 2004, commission hearing officers issued two orders. One specifically disallowed Eggelston’s claim for “aggravation of pre-existing disc degeneration at L2, 3 [and] aggravation of pre-existing disc degeneration at L34.” In that order, the commission relied on Dr. Sethi and concluded that “the present symptomatology is not related to the 11/22/99 injury by way of either 72 causation, aggravation, or flow through.” The other order denied further temporary total disability compensation based on a finding of maximum medical improvement. Those orders became final. (¶ 6} On December 20, 2004, the commission granted Eggelston’s wage-loss application, based in part on Dr. Viau’s June 18, 2004 report. BMC unsuccessfully objected administratively and then turned to the Court of Appeals for Franklin County. (¶ 7} BMC objected to the commission’s reliance on Dr. Viau, claiming that inconsistencies among the three Viau reports disqualified all three from evidentiary consideration. The court of appeals disagreed and denied a writ of mandamus, prompting BMC’s appeal to this court as of right. ¶ 8 Our review of the medical evidence reveals a confusing series of reports that are alternately complementary and contradictory. The commission’s December 20, 2004 order suggests that the hearing officer may have been equally perplexed by the evidence, and, for this reason, we vacate the order and order the commission to consider the claim further and issue an amended order. ¶ 9 Dr. Viau’s June 18, 2004 examination generated the conclusions that Eggelston could do no work (June 28) and could do part-time work (June 18). Dr. Viau also attributed Eggelston’s symptoms exclusively to nonallowed conditions on April 30 and exclusively to allowed conditions on June 28. Into this mix is added Dr. Sethi’s May 24, 2004 report, which concludes that Eggelston’s symptoms are unrelated to her workplace injury — a report and conclusion that the commission expressly adopted in one of its July 12, 2004 orders. ¶ 10 The December 20, 2004 commission order currently at issue relied on Dr. Viau’s report that permitted part-time work. The order does not indicate whether the hearing officer was aware that the same examination that generated the conclusion that Eggelston could work also generated the conclusion that she could not. ¶ 11 The hearing officer also claims that the July 12, 2004 order did not state “that the 1999 injury had resolved.” While the July order did not use those exact words, it did say that Eggelston’s “present symptomatology is not related to the 11/22/1999 injury by way of either causation, aggravation, or flow-through.” This certainly suggests that residuals from the allowed conditions no longer exist. ¶ 12 We therefore find a sufficient lack of clarity to warrant an order to the commission to consider the claim further and issue an amended order. Accordingly, the judgment of the court of appeals is reversed. Judgment reversed and limited writ granted. 73 Moyer, C.J., Pfeifer, Lundberg Stratton, O’Connor, O’Donnell and Cupp, JJ., concur. Lanzinger, J., concurs separately.