State ex rel. Kish v. Kroger Co.

Decision Date14 May 2013
Docket NumberNo. 2011–1990.,2011–1990.
Citation989 N.E.2d 45,135 Ohio St.3d 451
PartiesThe STATE ex rel. KISH, Appellant, v. KROGER COMPANY et al., Appellees.
CourtOhio Supreme Court

OPINION TEXT STARTS HERE

Law Offices of James A. Whittaker, L.L.C., Laura J. Murphy, and James A. Whittaker, Cincinnati, for appellant.

Michael DeWine, Attorney General, and Kevin J. Reis, Assistant Attorney General, for appellee Industrial Commission.

Beirne & Wirthlin Co., L.P.A., and J. Stephen Wirthlin, Cincinnati, for appellee Kroger Company.

PER CURIAM.

[Ohio St.3d 452]{¶ 1} Appellant, Becky Kish, appeals the judgment of the court of appeals denying her request for a writ of mandamus to require appellee the Industrial Commission to award her compensation pursuant to R.C. 4123.57(B) for the loss of use of her left arm.

{¶ 2} The court of appeals determined that the reports of Dr. David C. Randolph dated June 21 and October 2, 2009, issued as addenda to his original report of March 5, 2009, constituted some evidence in support of the commission's decision denying Kish's request for compensation for the loss of use of her left arm. Thus, the court concluded that the commission had not abused its discretion.

{¶ 3} For the reasons that follow, we agree, and we therefore affirm the judgment of the court of appeals denying the writ of mandamus.

{¶ 4} Kish was working as a clerk for appellee Kroger Company on January 3, 1990, when she slipped and fell on a wet floor, injuring her left ankle. Since then, she has suffered several other injuries that have been attributed to her underlying ankle injury. By 2009, Kish's workers' compensation claim had been allowed for the following conditions: left ankle injury, reflex sympathetic dystrophy (“RSD”), depression, fracture/dislocation left elbow with compartment syndrome, and loss of use of the left leg. Also by 2009, she had had multiple surgeries and was taking approximately 14 medications.

{¶ 5} On February 23, 2009, at the request of Kroger, Dr. David C. Randolph examined Kish to determine whether further treatment was necessary and appropriate for her injury and other allowed conditions. In a March 5, 2009 report, Dr. Randolph identified and accepted the following allowed conditions: “left lower leg injury; depressive disorder; RSD; fracture left lower humerus, closed; [and] early complications of trauma.” His report noted Kish's current complaints and the medical records he had reviewed. It also detailed his physical examination of Kish. Dr. Randolph concluded that Kish required no further medical treatment for her 1990 industrial injury and other allowed conditions in her claim and that her current medications were neither necessary nor appropriate for her allowed conditions.

{¶ 6} As a result, Kroger notified Kish that Kroger would no longer pay for her treatment or medications.

[Ohio St.3d 453]{¶ 7} On March 18, 2009, Kish filed a motion asking the commission to authorize continued treatment and medications, and a week later, she filed a motion for scheduled 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 Kish on October 3, 2008, to evaluate her left arm. In a report dated March 25, 2009, he concluded that Kish had “suffered serious injury to the left upper extremity” and that she demonstrated the loss of use “based upon combination of finger, hand, wrist, elbow and shoulder function.” He also concluded that she demonstrated “significant signs of complex regional pain syndrome” related to her left arm.

{¶ 8} In April 2009, a district hearing officer authorized her continued treatment and medications based on the reports from Dr. Gula and another doctor.

{¶ 9} On June 21, 2009, Dr. Randolph wrote an addendum to his original report to specifically address the alleged loss of use of Kish's left arm. According to Dr. Randolph, there was no objective evidence to support Kish'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.

{¶ 10} On July 16, 2009, Dr. Gula responded to Dr. Randolph's criticisms. He reiterated that Kish “does demonstrate a complete loss of use in the sense of the ability to function.”

{¶ 11} In August 2009, a district hearing officer denied Kish's motion for compensation for the loss of use of her arm based on Dr. Randolph's June addendum. The hearing officer specifically rejected Dr. Gula's opinion.

{¶ 12} Kish appealed, and each doctor responded in writing to the hearing officer's decision. On September 11, 2009, Dr. Gula clarified that Kish's loss of use of her left arm was based upon the allowed condition of fracture dislocation left elbow, with associated compartment syndrome. On October 2, 2009, Dr. Randolph repeated his opinion that Kish did not suffer a total loss of use of her left arm and that Dr. Gula's opinion was not supported by objective evidence.

{¶ 13} A staff hearing officer denied the motion based on Dr. Randolph's June and October addenda. The hearing officer noted that Dr. Randolph had “opined that there are no objective abnormalities with respect to [Kish's] left upper extremity which would support a total loss of use. * * * Dr. Randolph observed [Kish] during his examination and noted that when [she] was unaware of being observed her left upper extremity function appeared to be approaching normal.”

{¶ 14} The commission denied Kish's further appeal.

{¶ 15} Kish filed a complaint for a writ of mandamus in the Tenth District Court of Appeals alleging that the commission's decision constituted an abuse of discretion. The court of appeals concluded, however, that Dr. Randolph's addenda[Ohio St.3d 454]constituted some evidence upon which the commission could rely to support its decision denying Kish's claim for the loss of use of her left arm. Thus, the appellate court determined that the commission had not abused its discretion and denied the writ.

{¶ 16} This cause is now before this court on an appeal as of right.

{¶ 17} The dispositive issue is whether the second and third reports of Dr. Randolph—issued as addenda to his original report of March 5, 2009—constituted some evidence to support the commission's decision denying Kish's motion for a scheduled loss-of-use award.

{¶ 18} First, Kish argues that Dr. Randolph's addenda could not be considered some evidence to support the commission's decision, because Dr. Randolph had not considered all the allowed conditions in...

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4 cases
  • State ex rel. Brahler v. Kent State Univ.
    • United States
    • Ohio Court of Appeals
    • December 3, 2013
    ...at one level, for whatever reason, and rely on it at another). However, we agree with the magistrate that State ex rel. Kish v. Kroger Co., 135 Ohio St.3d 451, 2013-Ohio-1931, provides a proper basis for distinguishing the present case from those in Zamora. Based upon Kish, the magistrate c......
  • State ex rel. Huntington Nat'l Bank v. Elizabeth Lapinta & Indus. Comm'n of Ohio
    • United States
    • Ohio Court of Appeals
    • November 2, 2017
    ...history must be discounted. Relator cites State ex rel. Kish v. Kroger Co., 10th Dist. No. 10AP-882, 2011-Ohio-5766, aff'd 135 Ohio St.3d 451, 2013-Ohio-1931, in which this court denied a writ of mandamus. In Kish, the commission gave credence to a medical report finding that the claimant h......
  • State ex rel. Old Dominion Freight Line, Inc. v. Indus. Comm'n of Ohio
    • United States
    • Ohio Supreme Court
    • February 2, 2016
    ...and the commission to accept, an addendum or a supplemental report after a medical examination. See State ex rel. Kish v. Kroger Co., 135 Ohio St.3d 451, 2013-Ohio-1931, 989 N.E.2d 45.{¶ 22} Once the commission realized its inadvertent omission, it cured any potential problem by sending the......
  • State ex rel. Kish v. Kroger Co., 2011-1990
    • United States
    • Ohio Supreme Court
    • July 8, 2013
    ...2013 Ohio Official Reports advance sheet. These opinions should now be cited using the Ohio Official Reports citation format. 135 Ohio St.3d 451, 2013-Ohio-1931. ...

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