Case Information
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[This opinion has been published in
Ohio Official Reports
at
T HE TATE EX REL . V ERBANEK A PPELLANT , v . I NDUSTRIAL OMMISSION OF HIO ET AL ., A PPELLEES .
[Cite as State ex rel. Verbanek v. Indus. Comm.,
Evidence rejected by Industrial Commission may not later be relied оn to deny claim.
(No. 94-508—Submitted June 6, 1995—Decided August 30, 1995.) A PPEAL from the Court of Appeals for Franklin County, No. 93AP-276. Appellant-claimant, Edward Verbanek, was injured in 1987 while in the course оf and arising from his employment with respondent LTV Steel Company. His workers’ compensation claim was allowed for lumbosacral myofascitis. He missed аpproximately three months of work before resuming his regular duties. Claimant later applied to appellee, Industrial Commission of Ohio to
determine his percentage of permanent partial disability. Among other evidence before the commission was the report of Dr. George D. Boutourаs. He recited claimant’s history of pre-injury back problems as follows:
“1. 11/07/78—Off work since October 25, 1978. Injured his back moving a refrigerator at home and was treated for ‘lumbosacral sprain.’ He was treated by his private medical doctor for ‘acute lumbar myoscitis [ sic ].’
“2. 08/14/78—Off work since July 12, 1978. Treated for ‘lumbar myositis.’ Injured on July 28, 1988 when he was ‘physically assaulted -- back injury from being kicked.’
“3. 11/16/76—Left work because on November 3, 1976 he ‘wrenched his back when moving furniture.’ *2 UPREME OURT OF HIO
“4. 05/13/74—Off work for 1 1/2 months because hе ‘sprained his back.’ “5. 6/18/73—Left work because of ‘sore back, upper left’ he sustained ‘playing volleyball at a picnic’ on July 17, 1973.”
{¶ 3} Based on the lack оf objective findings at the time of his examination, Dr. Boutouras assessed a zero percent permanent partial impairment. The commission, howеver, on September 21, 1989, made a fifteen-percent award of permanent partial disability.
{¶ 4} There is no evidence of, nor does claimant allege that there was any, medical treatment for the next two years. On October 3, 1991, however, claimant filed a C85A claim reactivation form, seeking рayment for medical services rendered from September 9, 1991, as well as authorization for continued treatment. When asked if claimant’s “present disаbility [is] due to the injury in this claim,” Gregg Battersby, D.C., who completed the form, responded affirmatively. A district hearing officer denied the request for payment of medical services, stating:
“* * * there is insufficient medical proof to causally relate the claimant’s current low back symptoms to the 05/05/87 industrial injury. The District Hearing Officer notes that Dr. Boutouras’s 02/15/89 report detailed the claimant’s history of low back problems beginning in 1974, thirteen (13) years prior to the industrial injury.” The order was administratively affirmed. Claimant filed a complaint for a writ of mandamus in the Court of
Appeals for Franklin County, alleging that the commission abused its discretion in denying authorization for payment of medical services. The court disagreed and denied the writ. This cause is now before this court upon an appeal аs of right.
Ben Sheerer Co., L.P. A., and Paula Goodwin , for appellant.
January Term, 1995
Betty D. Montgomery , Attorney General, and Gerald H. Waterman , Assistant Attorney General, for appellee Industrial Commission.
Baughman & Associates Co., L.P.A., R. Patrick Baughman and Sandra Becher Sommers , for appellee LTV Steel Company.
Per Curiam.
{¶ 8} One issue is presented: Is Dr. Boutouras’ report “some evidence” supporting the denial of payment for medical services? For the reasons to follow, we find that it is not.
{¶ 9}
State ex rel. Zamora v. Indus. Comm.
(1988),
not depend on Boutouras’ impairment assessment and is, thus, in a sense, severablе from it. However, even if the recited-history element of the report was somehow preservable under an exception to Zamora, it would be insufficient tо sustain the commission’s decision. We are not convinced that the commission could have reached its decision without reliance upon the zеro-percent impaired assessment that eliminated claimant’s industrial injury as a potential source of claimant’s renewed back problems. Finding thаt a crucial element of the commission’s reasoning is
unsupported by “some evidence,” the judgment of the court of appeals is hereby revеrsed and the writ of mandamus is allowed..
S UPREME OURT OF HIO Judgment reversed and writ allowed.
M OYER , C.J., D OUGLAS , R ESNICK and F.E. WEENEY , JJ., concur. W RIGHT P FEIFER and C OOK , JJ., dissent.
W RIGHT , J., dissenting. Unlike the majority, I believe there is “some evidence” supporting the Industrial Commission’s decision to not reactivate relator’s claim. Consequently, I dissent to the majority’s decision to reverse the court of appeals and grant a writ of mandamus in this case. In deciding whether to reactivate relator’s claim, the commission
had before it the report of Dr. George D. Boutouras. As noted by the mаjority, Dr. Boutouras’ report consisted of two parts. First, it recited relator’s history of back problems. Second, it contained Dr. Boutouras’ opinion, bаsed upon a medical examination of relator, that relator suffered from zero percent permanent partial impairment. The majоrity erroneously finds that based upon our decision in State
ex rel. Zamora v. Indus. Comm . (1988), 45 Ohio St.3d 17, 543 N.E.2d 87, the portion of Dr. Boutouras’ opinion setting forth relator’s history of back problems cannot constitute “some evidence” in support of the commission’s decision to not reactivate relator’s claim. The majority reads Zamora broadly to stand fоr the proposition that if any portion of a report is rejected at one level of the commission, the commission cannot rely on any other portion of the report at the same or different level later in the life of the claim. However, the majority’s broad interpretation excludes material in a report that is legitimately separate and distinct from the portion of the report that was previously rejected. Therefore, unlike the facts of Zamora , where the commission rejected a report at one level and then relied improperly on the same portion of a report at another level, it would not be
January Term, 1995
inconsistent or unreasonable to allow the commission to reject a portion of the report at one level and rely on another portion of that report at another or the same level. I believe this case falls within the above-mentioned exсeption to
Zamora . The medical history of the relator, as set forth in Dr. Boutouras’ report, is completely independent from Dr. Boutouras’ opinion as to the percentage of relator’s permanent partial impairment. The former is factual and the latter consists of an opinion based on Dr. Boutouras’ examination of relator. As such, the two portions of the report are independent and each may be accepted оr rejected by the commission. The portion of Dr. Boutouras’ report detailing relator’s history of
back problems constitutes “some evidence” to support the commission’s to decision
not reactivate relator’s claim. The majority overreaches its proper role in
concluding thаt this evidence is not sufficient because the majority is “not
convinced that the commission could have reached its decision without reliance
upon the zero-percent impaired assessment.” Our role is limited to determining
whether “some evidence” supports the commission’s determination.
State ex rel.
Burley v. Coil Packing, Inc.
(1987),