Percent of impairment


By Paul Pfeifer - Court of Appeals



On Jan. 14, 2008, Moses Romero was injured while working for River City Drywall Supply, Inc. His workers’ compensation claim was initially allowed for a sprain of his left leg and knee. In 2010, the Industrial Commission of Ohio – which handles these claims – found that Romero had a 6 percent permanent partial disability and granted him compensation accordingly.

In 2011, the Commission allowed the additional condition of medial meniscus tear of the left knee and increased the award by 4 percent for a total of 10 percent permanent partial disability.

Later that year, the Commission amended Romero’s claim to include the additional condition of substantial aggravation of preexisting condition of his left knee. Romero requested another increase in his permanent-partial-disability award based on the newly allowed condition.

At the Commission’s request, Dr. V.P. Mannava reviewed Romero’s medical file. Based on his review, Dr. Mannava opined that Romero had a whole-person impairment of 5 percent, which was less than his current 10 percent impairment.

Dr. Matt Murdock performed an independent medical examination on Romero and reached a different conclusion. Dr. Murdock concluded that Romero had a 14 percent whole-person impairment based on the newly allowed condition that, when combined with his previous award, resulted in a total of 24 percent impairment.

Following a hearing, the Commission approved an increase of 4 percent for a total of 14 percent, based on the medical reports of Dr. Mannava and Dr. Murdock. The Commission refused Romero’s appeal.

Romero then filed a complaint with the court of appeals alleging that the Commission’s order awarding only a 4 percent increase wasn’t supported by the evidence and that he was entitled to a 14 percent increase of permanent partial disability. Romero argued that the Commission abused its discretion by relying on Dr. Mannava’s report.

A magistrate with the court of appeals concluded that the Commission had not abused its discretion when it relied on the two doctors’ reports. The magistrate determined that Dr. Mannava had reviewed the file and accepted the objective findings of the examining physicians.

The magistrate further determined that Dr. Mannava was not required to accept the Commission’s previous finding of 10 percent impairment in reaching his opinion based on the medical evidence. Ultimately, the magistrate concluded that it was within the Commission’s discretion to fashion an increase of 4 percent in the permanent-partial-disability.

The court of appeals adopted the magistrate’s findings and denied the writ that Romero had sought. After that, Romero brought his appeal before us – the Ohio Supreme Court.

The issue before us was whether Dr. Mannava’s report constituted “some evidence” upon which the Commission could rely in support of its decision to increase Romero’s permanent-partial-disability award.

Previous workers’ compensation cases have established that a nonexamining physician who provides a medical opinion is required to review all the relevant medical evidence and accept the objective findings of all the examining physicians. Romero maintained that the nonexamining physician must identify the other physicians by name, but there is no such requirement.

In bringing his appeal before us, Romero raised the same arguments as those that were addressed and rejected by the court of appeals. First, Romero maintained that Dr. Mannava failed to accept the findings of the physicians who had previously examined him, and thus, Dr. Mannava’s report couldn’t qualify as evidence to support the Commission’s decision.

But in his report, Dr. Mannava expressly stated that he had reviewed the file and accepted the objective findings. His report set forth the findings of examining physicians Dr. Forte and Dr. Boyer and those of Dr. Nobbs, a chiropractor. Based on those findings, Dr. Mannava opined that Romero was not entitled to an additional percentage award. Because it was within the Commission’s discretion to rely on Dr. Mannava’s report, Romero’s argument failed.

Next, Romero argued that Dr. Mannava ignored the Commission’s prior finding granting a 10 percent permanent-partial-disability award. According to Romero, Dr. Mannava decided to reduce the percentage the Commission had already granted for the allowed conditions in the claim. But Romero cited no previous decisions by Ohio courts that require a physician to make a finding at least as great as a prior award.

Instead, Dr. Mannava based his opinion on the medical evidence and opined that Romero was entitled to only a 5 percent permanent-partial-disability award rather than the 10 percent he was then receiving. It was within the Commission’s discretion to rely on Dr. Mannava’s report, and once again, Romero’s argument failed.

Finally, Romero contended that Dr. Mannava’s report failed to refer to the evidence supporting the additional condition of substantial aggravation of Romero’s preexisting problem with his left knee. But Dr. Mannava’s report clearly referred to the newly recognized condition.

Dr. Mannava recognized the existence of this condition, accepted the examiners’ findings, and based his opinion on those findings. His failure to comment on that condition specifically did not call into question the value of his report as evidence. Thus, Romero failed to establish that the Commission abused its discretion when it relied on the reports of Dr. Mannava and Dr. Murdock to support its decision.

The Commission has exclusive discretion to determine the weight and credibility of the evidence, as well as all disputed facts. Our court may not disturb a Commission order that is supported by “some evidence,” even if the record includes other evidence that is greater in quality or quantity supporting a contrary decision.

In this case, the Commission relied on the reports of Dr. Mannava, who opined that Romero had only a 5 percent impairment, and Dr. Murdock, who concluded that there was a 14 percent impairment. The Commission, acting within its discretion, chose a figure within the range suggested by both doctors.

Romero failed to meet his burden – to show that he has a clear right to the relief that he requested and that the Commission has a clear duty to provide such relief. Therefore, by a seven-to-zero vote, we affirmed the court of appeals in denying Romero’s requested writ.

By Paul Pfeifer

Court of Appeals

Paul Pfeifer is a judge in the Court of Appeals.

Paul Pfeifer is a judge in the Court of Appeals.

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