State ex rel. Ganson v. Indus. Comm., 2009 Ohio 1669 (Ohio App. 4/7/2009)
| Decision Date | 07 April 2009 |
| Docket Number | No. 08AP-502.,08AP-502. |
| Citation | 2009 Ohio 1669 |
| Parties | State of Ohio ex rel. Michael B. Ganson, and Michael B. Ganson Co., L.P.A., Relators, v. Industrial Commission of Ohio, Respondent. |
| Court | Ohio Court of Appeals |
Michael B. Ganson Co., L.P.A., and Michael B. Ganson, for relator.
Richard Cordray, Attorney General, and Elise Porter, for respondent.
{¶1} Relators, Michael B. Ganson ("relator") and Michael B. Ganson Co., L.P.A., filed this original action requesting a writ of mandamus ordering respondent, Industrial Commission of Ohio ("commission"), to vacate its order denying him payment for home exercise equipment, and to enter an order granting payment.
{¶2} This court referred this matter to a magistrate pursuant to Civ.R. 53(C) and Loc.R. 12(M) of the Tenth District Court of Appeals. The magistrate issued a decision, which includes findings of fact and conclusions of law and is appended to this opinion, recommending that this court deny the requested writ. Specifically, the magistrate found that the commission did not abuse its discretion by relying upon a 2005 policy to deny payment for home exercise equipment, even though relator's injury occurred in 2004. No objections to that decision have been filed.
{¶3} Finding no error of law or other defect on the face of the magistrate's decision, this court adopts the magistrate's decision as our own, including the findings of fact and conclusions of law contained in it. In accordance with the magistrate's decision, the requested writ is denied.
Writ of mandamus denied.
{¶4} In this original action, relators Michael B. Ganson ("relator") and Michael B. Ganson Co., L.P.A. request a writ of mandamus ordering respondent, Industrial Commission of Ohio ("commission"), to vacate its order denying him payment for home exercise equipment known as an Apollo Universal Weight Machine, and to enter an order granting payment.
Findings of Fact:
{¶5} 1. On October 13, 2004, relator sustained an industrial injury. This state-fund claim (No. 04-866468) is allowed for:
Sprain of neck; sprain thoracic region; sprain lumbar region; sprain left shoulder; herniated cervical discs at C3-4, C4-5, C5-6, C6-7; cervical radiculitis; concussion without loss of consciousness; mild carpal tunnel syndrome, left wrist; aggravation of pre-existing degenerative disc disease of the cervical spine; somatic dysfunction low back; chronic low back dysfunction.
{¶6} 2. In a "progress note" dated June 27, 2007, relator's physical therapist made the following recommendation:
Recommend home Apollo unit or gym membership, flexibelt and gymball for home [exercise] program, lumbar air pillow for support at work.
{¶7} 3. On a prescription form dated November 12, 2007, treating physician William D. Tobler, M.D., wrote:
{¶8} 4. On January 31, 2008, relator moved for payment of: (1) an Apollo Universal Weight Machine; (2) lumbar support air pillow; (3) an exercise and balance gym ball; and (4) a flexibelt.
{¶9} In support of his motion, relator submitted his physical therapist's June 27, 2007 "progress note" and Dr. Tobler's "prescription."
{¶10} 5. Relator also submitted an invoice "proposal" for the Apollo Universal Weight Machine showing the price to be $1,199, a delivery charge of $50 and an installation charge of $50. Including sales tax, placement of the machine in relator's home would cost $1,383.44.
{¶11} 6. On March 17, 2008, a district hearing officer ("DHO") heard relator's motion. At the hearing, relator submitted a three-page memorandum in support of his motion. Relator attached to his memorandum a two-page document captioned "CareWorks Medical Treatment Guidelines." That document states:
Effective 5-1-05, MCOs May Not Approve Unsupervised Reconditioning Programs for Injured Workers who are Not in a Rehab or RAW Plan.
Personal Trainers are Not a Covered Service.
Description:
If approved in a Rehab or RAW plan the following supplies:
• Services may be reimbursed for claims where it is determined to be medically appropriate, necessary, and related to the allowed conditions in the claim.
• The request must be accompanied by an evaluation and report from the attending physician and licensed physical therapist demonstrating medical necessity for swimming or exercise in YMCA/YWCA, clubs, gyms, nautilus, spas, etc.
The need of special equipment and exercises to a specific part of the body allowed in the claim must be prescribed by the physician of record.
• Duration of membership will be authorized for reimbursement for no more than three (3) months and up to $200 per program.
• Unsupervised physical reconditioning may be provided at a health club, YMCA, spa, or nautilus facility. Does not include supervision by a licensed physical therapist.
• These sessions are under the injured worker's physician's direction and responsibility.
• The attending physician shall submit a detailed report at the end of the 3-month membership period.
• An integral part of the membership at any of the above-mentioned facilities is documentation of the injured worker's attendance record and the amount of participation in the program.
• If the services is [sic] being provided as part of an approved rehab plan, the service must be terminated at the end of the plan in which is [sic] appears, or at the vocational rehabilitation case closer, whichever comes first.
{¶12} 7. Also attached to relator's memorandum filed March 17, 2008 is a one-page document captioned "Equipment used for a non-medical purpose." Thereunder, the document states:
Home exercise equipment, such as treadmills and exercise bikes, are not considered to be durable medical equipment and shall not be authorized or paid by for BWC/MCO, except when the criteria has been met for an [injured worker] who is participating in a vocational rehab program.
{¶13} 8. At oral argument, relator informed the magistrate that the above-described documents attached to his March 17, 2008 memorandum were obtained by relator from his Managed Care Organization ("MCO").
{¶14} 9. Following the March 17, 2008 hearing, the DHO issued an order denying payment for the Apollo Universal Weight Machine, but allowing payment for the other items requested. The DHO's order explains:
The District Hearing Officer finds that the injured worker's request for a lumbar support air pillow, an exercise and balance gym ball and flexibelt are medically necessary and appropriate for treatment of the allowed conditions in the claim. Therefore the request for the lumbar support air pillow, exercise and balance gym ball and flexibelt are authorized to be paid for under this claim.
This finding is based upon the request by Dr. Tobler and the office notes of physical therapist.
The District Hearing Officer finds that the injured worker's request for a home Apollo universe weight machine is denied. The District Hearing Officer finds that effective 05/01/2005 a request for an unsupervised reconditioning program for an injured worker is not to be approved when the injured worker is not in a rehabilitation plan. The District Hearing Officer finds that this request for the home exercise equipment should not be reimbursed or paid for by the Bureau of Workers' Compensation except where the criteria has been met for an injured worker who is participating in a vocational rehabilitation program. The District Hearing Officer finds that the injured worker is not participating in a vocational rehabilitation program. The District Hearing Officer finds that this policy effective 05/01/2005 is applicable to this claim. The District Hearing Officer denies the request for the home Apollo universal weight machine which cost $1,199.00 the delivery charge of $50.00 and the installation charge of $50.00. The District Hearing Officer finds that the cost of this home Apollo universal weight program together with the delivery charge and installation charge is not to be reimbursed by the Bureau of Workers' Compensation. The District Hearing Officer finds that this request is not appropriate under the Bureau of Workers' Compensation rules and guidelines.
{¶15} 10. Relator administratively appealed the DHO's order of March 17, 2008.
{¶16} 11. Following an April 30, 2008 hearing, a staff hearing officer ("SHO") issued an order affirming the DHO's order. The SHO's order explains:
The District Hearing Officer order, dated 03/17/2008, is affirmed with additional reasoning.
The injured worker's C-86 motion, filed 01/31/2008, is granted in part and denied in part.
That portion of the injured worker's motion requesting authorization of a lumbar support air pillow, an exercise and balance gym ball and a flexibelt is granted.
The Staff Hearing Officer finds that the use of these pieces of equipment is appropriate and necessary for treatment of the allowed conditions based on the physical therapy note dated 06/27/2007. Further, the Staff Hearing Officer finds that the use of the these...
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