September 4, 2013
Workers' Compensation Denied Claim

by Justice Paul E. Pfeifer

Becky Kish was working as a clerk for Kroger Company, when, on January 3, 1990, she slipped and fell on a wet floor, injuring her ankle. Since then, Becky has suffered several other injuries that have been attributed to her underlying ankle injury.

By 2009, her workers’ compensation claim had been allowed for multiple conditions, including the left ankle injury, depression, and fracture/dislocation of her left elbow with compartment syndrome. Compartment syndrome occurs after an injury when there is insufficient blood supply to the muscles and nerves. She also had multiple surgeries and was taking about 14 medications for her conditions.

In February 2009, at the request of Kroger, Dr. David C. Randolph examined Becky to determine whether further treatment was necessary and appropriate for her injury and other allowed conditions. Dr. Randolph concluded that Becky required no further medical treatment for her 1990 ankle injury and the other allowed conditions in her claim, and that her current medications were neither necessary nor appropriate for her allowed conditions.

Kroger notified Becky that the company would no longer pay for her treatment or medications. In response, Becky filed a motion asking the Industrial Commission of Ohio – which handles such matters – to authorize continued treatment and medications. A week later, she filed a motion for compensation for the loss of use of her left arm.

She submitted a report from Dr. Douglas Gula in support of both motions. Dr. Gula had examined Becky in October 2008, to evaluate her left arm. He concluded that Becky had “suffered serious injury to the left upper extremity.” A district hearing officer with the Industrial Commission authorized her continued treatment and medications based on the reports from Dr. Gula and another doctor.

In June 2009, Dr. Randolph wrote an addendum to his original report to specifically address Becky’s left arm claim.  According to Dr. Randolph, there was no objective evidence to support Becky’s claim, and Dr. Gula’s opinion was invalid because he had merely relied on her self-reporting of pain and loss of function and had not made any objective findings to support the claims.

Dr. Gula responded to Dr. Randolph’s criticisms, reiterating that Becky demonstrates “a complete loss of use in the sense of the ability to function.”

A Commission district hearing officer – the next step up the ladder of appeals – denied Becky’s motion for compensation for the loss of use of her arm based on Dr. Randolph’s addendum, and rejected Dr. Gula’s opinion.

Becky appealed, and Dr. Gula clarified that Becky’s loss of use of her left arm was based upon the fracture/dislocation of her left elbow, with associated compartment syndrome, while Dr. Randolph, in a second addendum, repeated his earlier opinion.

A hearing officer denied the motion based on Dr. Randolph’s two addenda. The hearing officer noted Dr. Randolph also observed Becky during his examination and “noted that when she was unaware of being observed her left upper extremity function appeared to be approaching normal.”

Becky filed a complaint with the court of appeals alleging that the Commission’s decision constituted an abuse of discretion. The court of appeals, however, concluded that Dr. Randolph’s addenda constituted “some evidence” upon which the Commission could rely to support its decision denying Becky’s left arm claim.

After that, her case came before us – the Supreme Court of Ohio. The key issue in our review was whether Dr. Randolph’s second and third reports constituted “some evidence” to support the Commission’s decision denying Becky’s motion for a loss-of-use award.

First, Becky argued that Dr. Randolph’s addenda could not be considered “some evidence,” because he had not considered all the allowed conditions in his first report, in particular, the compartment syndrome associated with Becky’s left arm.

An examining physician must consider the allowed conditions in order to render an opinion that will constitute “some evidence” upon which the Commission can rely. In his original report, Dr. Randolph did not expressly refer to her allowed condition as “fracture/dislocation left elbow with compartment syndrome.”

Thus, Becky argued, Dr. Randolph did not consider the compartment-syndrome component and his opinion cannot support the Commission’s decision.

The court of appeals, however, noted that Dr. Randolph acknowledged in his report that Becky told him that she had developed compartment syndrome in her left arm. The court of appeals also noted that “compartment syndrome” is a subcategory of “early complications of trauma.” And Dr. Randolph had considered “early complications of trauma,” so therefore he considered compartment syndrome.

There was no dispute that Dr. Randolph examined Becky’s left arm and provided clinical findings in support of his opinion. And he addressed Dr. Gula’s comments on the condition. Consequently, Becky’s argument that Dr. Randolph did not consider compartment syndrome lacked merit.

Becky also maintained that the Commission implicitly rejected Dr. Randolph’s initial report in its order authorizing the continuation of treatment and medications, so his additional reports must likewise be rejected. But the court of appeals concluded that the Commission did not rely on Dr. Randolph’s initial report in its order denying the loss-of-use motion; it relied, instead, on his later addenda. And the Commission did not reject the clinical findings from his initial examination. It was therefore within the Commission’s discretion to rely on those reports.

Lastly, Becky contended that Dr. Randolph fabricated additional observations and findings in his second addendum to support his opinion. She maintained that Dr. Randolph’s statement that her left arm was “quite functional” when she was unaware of being observed was contrary to findings in his original report.

But we determined that the record contained no evidence to support her allegation that the doctor fabricated this or any other statement. Without more, we concluded that Becky’s argument was merely speculative.

Because Dr. Randolph’s addenda constituted “some evidence” to support the Commission’s decision to deny Becky’s request for compensation for the loss of use of her left arm, we concluded – by a seven-to-zero vote – that the Commission did not abuse its discretion. We therefore affirmed the court of appeals’ judgment.

EDITOR'S NOTE: The case referred to is State ex rel. Kish v. Kroger Co., 135 Ohio St.3d 451, 2013-Ohio-1931. Case No. 2011-1990. Decided May 14, 2013. Opinion Per Curiam.