State ex rel. Miller v. Indus. Comm.

• Decision Date: 20 December 1994
• Docket Number: No. 93-2224,93-2224
• Citation: 71 Ohio St.3d 229,643 N.E.2d 113
• Parties: The STATE ex rel. MILLER, Appellant and Cross-Appellee, v. INDUSTRIAL COMMISSION of Ohio, Appellee and Cross-Appellant.
• Court: Ohio Supreme Court

Page 229

71 Ohio St.3d 229

643 N.E.2d 113

The STATE ex rel. MILLER, Appellant and Cross-Appellee, v. INDUSTRIAL COMMISSION of Ohio, Appellee and Cross-Appellant.

No. 93-2224.

Supreme Court of Ohio.

Submitted Nov. 15, 1994.

Decided Dec. 20, 1994.

In 1985, appellant and cross-appellee, Kathy Jo Miller, claimant herein, injured her back in the course of and arising from her employment as a nurse's aide with Tender Loving Care. Claimant, at that time, weighed two hundred sixty pounds. Appellee and cross-appellant, Industrial Commission of Ohio, allowed her workers' compensation claim and, in the years that followed, claimant's weight increased significantly, allegedly because of the inactivity caused by her injury.

In 1989, claimant moved the commission for authorization to enroll in a supervised weight-loss program. Numerous letters from claimant's attending chiropractor, Dr. Jeffrey L. Hunter, advocated weight loss. The extent to which Dr. Hunter anticipated the weight loss would actually improve claimant's allowed condition as opposed to merely improve her ability to cope with it was not specified.

During this time, the commission had claimant examined to determine her continuing eligibility for temporary total disability compensation. Dr. William Reynolds opined, among other things, that claimant's condition was permanent. He also concurred in Dr. Hunter's recommendation of a weight-loss program.

On March 12, 1991, a commission district hearing officer ruled:

" * * * [T]emporary total compensation is denied after March 12, 1991. The District Hearing Officer finds that claimant's condition is now permanent in that maximum improvement has been reached per Dr. Reynolds. * * *

"Should claimant desire authorization for a 'weight loss program,' said request [should] be made on form C-161 by her attending physician, identifying the specific program, treatment modality and medical justification therefore [sic ], per Bureau of Workers' Compensation/Industrial Commission rules and procedures."

Claimant's doctor filed the requisite C-161 weight-loss authorization form. A regional board, however, affirmed the district hearing officer's order without comment.

On appeal, staff hearing officers modified the board's order as follows:

" * * * [T]he claimant's request for authorization for a 'weight loss program' is denied for the reason that obesity is not an allowed condition in this claim; therefore, treatment of same cannot be paid."

Claimant filed a complaint in mandamus in the Court of Appeals for Franklin County, alleging that the commission abused its discretion in denying further temporary total disability compensation and weight-loss treatment authorization. The court of appeals agreed in part, finding that because Dr. Reynolds recommended weight-loss treatment participation, his report was not "some evidence" that claimant's condition had become permanent. The court ordered the commission to vacate its order and redetermine claimant's entitlement to temporary total disability compensation after March 12, 1991. The court upheld the weight-loss treatment denial, ruling that the commission did not abuse its discretion in requiring that "obesity" be recognized as an allowed condition before authorization could be considered.

This cause is now before this court upon an appeal and cross-appeal as of right.

Stewart Jaffy & Associates Co., L.P.A., Stewart R. Jaffy and Marc J. Jaffy, Columbus, for appellant and cross-appellee.

Lee Fisher, Atty. Gen., and Jetta Mencer, Asst. Atty. Gen., for appellee and cross-appellant.

PER CURIAM.

Claimant had a very severe weight problem before her injury. It has worsened considerably since. Claimant's doctor recommends--and the commission's physician concurs--that claimant enter a supervised weight-loss program. Claimant now asks the commission to authorize and pay for that treatment. Two questions arise: (1) Is the additional allowance of "obesity" a prerequisite for such authorization? and (2) Does the weight-loss treatment recommendation preclude a finding of maximum medical improvement ("MMI") and thus the denial of temporary total disability compensation? For the reasons to follow, we affirm the appellate judgment only in part.

Former R.C. 4123.651(A) read:

"Any employee who is injured or disabled in the course of his employment shall have free choice to select such licensed physician as he may desire to have serve him, as well as medical, surgical, nursing, and hospital services and attention * * *." (128 Ohio Laws 765.)

Former R.C. 4121.44 provided:

"The administrator of the bureau of workers' compensation shall adopt rules to ensure that * * * requirements are met with respect to any payments made to health care providers for a claim pursuant to Chapter 4123. of the Revised Code * * *." (136 Ohio Laws, Part I, 1120-1121.)

Finally, former R.C. 4123.66 directed:

"In addition to the compensation provided for in Chapter 4123. of the Revised Code, the industrial commission shall disburse and pay from the state insurance fund such amounts for medical, nurse, and hospital services and medicine as it deems proper * * *." (137 Ohio Laws, Part II, 3954.)

These statutes empowered the commission and bureau to oversee health care expenditures. State ex rel. Campbell v. Indus. Comm. (1971), 28 Ohio St.2d 154, 57 O.O.2d 397, 277 N.E.2d 219; State ex rel. Nutt v. Cincinnati (1994), 70 Ohio St.3d 594, 639 N.E.2d 1196. Campbell has been interpreted as articulating a three-pronged test for the authorization of medical services: (1) are the medical services "reasonably related to the industrial injury, that is the allowed conditions"? (2) are the services "reasonably necessary for treatment of the industrial injury"? and (3) is "the cost of such service * * * medically reasonable"? See State ex rel. Noland v. Indus. Comm. (Aug. 27, 1987), Franklin App. No. 86AP-594, unreported, 1987 WL 16171.

The issue of weight-loss treatment eligibility is complex for several reasons, most of which involve causal relationship. Perhaps the most difficult element of this issue is the question of general health improvement versus industrial recovery. Anyone who is severely overweight would benefit from weight loss for many reasons. Thus, if sheer improvement were the sole prerequisite, payment for weight-loss treatment would be compelled in every instance--a result which we find unacceptable.

Other states that have confronted this issue uniformly agree that not only must weight loss be geared towards improving the allowed industrial conditions, improvement must be curative and not merely palliative. For example, weight-loss treatment was approved by an Oregon appellate court in In re Van Blokland (1987), 87 Ore.App. 694, 743 P.2d 1136, because:

"The conditions intended to be ameliorated by the obesity program are claimant's compensable injuries. Although it is true that the purpose of the Risk Factor Obesity Program is to help claimant lose weight, the program will also aid her in recovering from the compensable injuries and may avoid the need for surgery. * * * " Id. at 697-698, 743 P.2d at 1138.

As stated, the treatment cannot be palliative. It is not enough that weight loss decreases pain associated with the allowed conditions; weight-loss must actually improve those conditions. As the Rhode Island Supreme Court wrote in Bissonnette v. Federal Dairy Co., Inc. (R.I.1984), 472 A.2d 1223, 1226-1227:

"The record indicates that the loss of weight would relieve the pain and discomfort associated with employee's injuries as well as his other medical ailments--elevated blood pressure, reduced lung capacity and hormonal problems. As we have long held, however, pain is not compensable under our compensation statute. * * * Rather, employee must prove that the disputed treatment would relieve, rehabilitate, or cure his disability. This he has not done. As beneficial as the loss of weight may be to employee's general health, there is no evidence that he would ever be able to return to his former work, even assuming the loss of weight.

" * * * [C]ompensating employee for the expenses of the weight-loss clinic would be tantamount to providing him with general health insurance. Such a result was never intended under the Workers Compensation Act."

Within this framework, the emerging consensus is that in certain situations, weight-loss programs can and should be authorized. See, e.g., Braewood Convalescent Hosp. v. Workers' Comp. Appeals Bd. (1983), 34 Cal.3d 159, 193 Cal.Rptr. 157, 666 P.2d 14; Hopp v. Grist Mill (Minn.1993), 499 N.W.2d 812; Bissonnette, supra; Van Blokland, supra. At a minimum, when statutes similar to Ohio's medical-payment provisions and liberal construction mandates favoring claimants were viewed together, the South Dakota Supreme Court "[could] not say that a medically necessary weight-loss program is never compensable." Krier v. John Morrell & Co. (S.D.1991), 473 N.W.2d 496, 498.

In this case, the commission does not contest the concept of compensability of weight-loss programs. The commission, however, argues that before payment can even be considered, "obesity" must first be formally recognized as an allowed condition.

We disagree for several reasons.

The commission relies on former R.C. 4123.84(A), which read:

"In all cases of injury or death, claims for compensation or benefits for the specific part or parts of the body injured shall be forever barred unless, within two years after the injury or death * * *." (137 Ohio Laws, Part II, 3960-3961.)

The reference to "specific part or parts of the body" is prominent in R.C. 4123.84. The statute is concerned primarily with compensation for a specific body part hurt, not with compensing for the nature of injury--for example, sprain or fracture--related thereto. Dent v. AT & T Technologies, Inc. (1988), 38 Ohio St.3d 187, 527 N.E.2d 821.

The mechanics of R.C. 4123.84 are irreconcilable with the concept of obesity as...