The opinion
[This opinion has been published in Ohio Official Reports at 89 Ohio St.3d 393.]
THE STATE EX REL. SEARS LOGISTICS SERVICES, INC., APPELLEE, v. COPE,
APPELLANT; INDUSTRIAL COMMISSION OF OHIO, APPELLEE.
[Cite as State ex rel. Sears Logistics Serv., Inc. v. Cope, 2000-Ohio-206.]
Workers’ compensation—Writ of mandamus granted by court of appeals ordering
Industrial Commission to issue a new order granting or denying relator’s
motion to terminate claimant’s compensation for temporary total
disability affirmed—Commission must consider all allowed conditions in
determining extent of claimant’s disability—Commission need not
consider an allowed condition if it is no longer disabling.
(No. 98-2674—Submitted April 10, 2000—Decided August 9, 2000.)
APPEAL from the Court of Appeals for Franklin County, No. 97APD11-1546.
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{¶ 1} Sears Logistics Services, Inc. (“Sears”), appellee, sought a writ of
mandamus forcing the Industrial Commission of Ohio to vacate its order denying
Sears’s motion to terminate Frances Cope’s compensation for temporary total
disability (“TTD”) and to enter an order terminating it. The court of appeals granted
a writ, but only to order the commission to issue a new order granting or denying
Sears’s motion. The court held that the commission abused its discretion by
rejecting Sears’s doctor’s report concluding that Cope had reached maximum
medical improvement (“MMI”) on the ground that the report did not account for an
allowed condition from which Cope’s doctor had said she no longer suffered. Cope
appeals as of right.
{¶ 2} Cope injured her knee in 1992 while working as a laborer for Sears.
Her claim was initially allowed for “left knee strain.” Later, after much medical
treatment, including having her knee surgically replaced, Cope’s claim was also
allowed for reflex sympathetic dystrophy (“RSD”). Sears, a self-insured employer
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in the workers’ compensation system, paid Cope TTD for years following her
injury.
{¶ 3} In December 1995, Sears’s case-management consultant asked
Cope’s physician, Dr. John Urse, to clarify his diagnosis of her condition. In
response to the consultant’s inquiry about whether RSD was still diagnosed, Dr.
Urse confirmed in writing that “Ms. Cope no longer is diagnosed with Reflex
Sympathetic Dystrophy.”
{¶ 4} In May 1997, Dr. Gary Ray examined Cope at Sears’s request. He
evaluated her for the allowed condition of left knee strain and summarized the
extensive medical treatment she had received. He concluded:
“IMPRESSION: With a reasonable degree of medical certainty her current
symptoms are a direct and proximate result of the October 2, 1992 industrial injury.
I could not detect any unrelated conditions which could be causing her current
symptoms. With a reasonable degree of medical certainty, she has reached
maximum medical improvement. She has undergone extensive re-evaluation and
treatment for the condition. The restrictions at this time include no lifting or
carrying of greater than 20 pounds occasionally and 10 pounds frequently, no
standing or walking for more than a half an hour at a time, and no squatting,
kneeling, climbing or crawling activities. She would be able to sit without
difficulty. With a reasonable degree of medical certainty, the treatment has been
excessive for the allowed condition of left knee strain. I would expect a left knee
strain to heal without complications. A left knee strain resolves within 3 months
with treatment consisting of medications, physical therapy and exercises. She was
treated for conditions other than the allowed condition of left knee strain. With a
reasonable degree of medical certainty, she had a pre-existing osteoarthritis of the
left knee as demonstrated on the left knee arthroscopy from February 23, 1993.
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Also, she was treated for the nonallowed conditions of torn medial meniscus and
synovial plica and synovitis.” (Emphasis added.)
{¶ 5} Armed with Dr. Ray’s report, Sears moved to terminate Cope’s TTD
on the ground that she had reached MMI, a disqualifying event. A commission
district hearing officer denied the motion, finding that Dr. Ray’s report was “legally
deficient” because he had not considered Cope’s second allowed condition, RSD.
A staff hearing officer affirmed. At that point, Sears submitted a second report
from Dr. Ray that accounted for both allowed conditions and acknowledged that
Cope had signs of mild RSD, but that still diagnosed MMI. Sears’s further appeal
was subsequently refused.
{¶ 6} The commission’s refusal to terminate Cope’s TTD prompted Sears
to file this action in the court of appeals. This cause is now before the court upon
an appeal as of right.
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Barkan & Neff and Robert E. DeRose, for appellant.
Roetzel & Andress, Douglas E. Spiker and Noel C. Shepard, for appellee
Sears Logistics Services, Inc.
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Per Curiam.
{¶ 7} The commission rejected Dr. Ray’s initial report because it did not
take RSD into account even though Dr. Urse had represented that the diagnosis of
RSD no longer applied. The order does not mention it, but the commission was
apparently relying on the fact that Dr. Urse had continued to certify Cope’s TTD
based on two conditions. Specifically, in a series of forms, Dr. Urse had
represented that Cope was temporarily and totally disabled by the allowed knee
sprain and also by “autonomic nerve disorder,” a condition that Cope claims
encompasses RSD.
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{¶ 8} Cope argues that the commission can never rely on a doctor’s MMI
report if the doctor has not considered all allowed conditions. Sears responds that
the commission has no reason to consider an allowed condition if it is no longer
disabling. The court of appeals agreed with Sears, and so do we.
{¶ 9} Ordinarily, the commission must consider all allowed conditions in
determining the extent of a claimant’s disability. State ex rel. Tilley v. Indus.
Comm. (1997), 78 Ohio St.3d 524, 526, 678 N.E.2d 1392, 1394. But as the court
of appeals’ magistrate explained, once Dr. Urse confirmed in December 1995 that
Cope was not suffering from RSD, that diagnosis left only one remaining allowed
condition to which Cope’s disability could be attributed—left knee strain. Thus, it
is of no consequence that Dr. Ray did not account for RSD in his initial report: an
allowed but nondisabling condition is irrelevant to determining whether a claimant
continues to qualify for disability compensation.
{¶ 10} Moreover, while Dr. Urse continued to certify Cope’s TTD after
December 1995, it is significant that he never specified an RSD diagnosis again.
Sometimes he referred to Cope’s “left knee soreness.” Other times he would use
codes for her condition from the International Classification of Diseases (9
Ed.1996) (“IDC-9”)—844.9 for knee sprain and 337.9 for “unspecified disorder of
autonomic nervous system.” Cope insists that the 337.9 code is a catchall category
for disorders of the autonomic nervous system, that RSD falls in this category, and
that this allowed condition is still contributing to Cope’s disability. But as the court
of appeals found, nothing in the record clearly establishes that RSD, which is
categorized as ICD-9 Code 337.2, is synonymous with the condition referred to by
ICD-9 Code 337.9.
{¶ 11} The court of appeals, therefore, did not err in finding that the
commission abused its discretion by discrediting Dr. Ray’s initial report.
Accordingly, we affirm the court of appeals’ judgment granting a writ of
mandamus. The commission is directed to vacate its order rejecting Dr. Ray’s
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initial MMI report and denying Sears’s motion to terminate TTD. The commission
is further directed to issue a new order that grants or denies this motion in a manner
consistent with our opinion.
Judgment affirmed.
MOYER, C.J., DOUGLAS, F.E. SWEENEY, PFEIFER, COOK and LUNDBERG
STRATTON, JJ., concur.
RESNICK, J., dissents.
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