State ex rel. Kramer v. Industrial Commission, 78-1424

Decision Date11 July 1979
Docket NumberNo. 78-1424,78-1424
Citation59 Ohio St.2d 39,391 N.E.2d 1015
Parties, 13 O.O.3d 30 The STATE ex rel. KRAMER, Appellant, v. INDUSTRIAL COMMISSION et al., Appellees.
CourtOhio Supreme Court

On August 5, 1969, Joseph Kramer, relator herein, twisted his back when his foot slipped while lifting a small steel tote pan of casting slugs while in the course of his employment with the Gerity Schultz Corporation. His Workers' Compensation claim was recognized for "low back strain and left sacroiliac sprain." He never received compensation for temporary total disability.

The commission found relator to be 15 percent permanent partially disabled on December 1, 1971, and 20 percent permanent partially disabled on August 23, 1974. On September 29, 1975, relator filed a motion with the commission requesting that he be found permanently and totally disabled. The commission denied the motion on March 1, 1976, stating "that such procedure is not indicated at this time." The commission found relator 35 percent permanent partially disabled on April 29, 1976.

On March 20, 1977, relator again filed a motion with the commission requesting that he be found permanently and totally disabled. The commission referred him to Dr. Ned B. Hein, an orthopedic specialist, for examination. Dr. Hein's report stated, in relevant part:

"PRESENT COMPLAINTS : At the present time claimant complains the back bothers him. He has pain constantly in the lower left leg to the foot. The right leg is all right. He cannot cross the left leg over the right. He cannot walk on the left heel at all. His bending is sometimes good, and 'sometimes bad.' He does not wear any type of back support, but he has tried to wear one.

"PHYSICAL EXAMINATION : Physical examination revealed a cooperative, well-developed well-nourished white man, who was 661/2 tall and weighed 154 pounds. He ambulated without any type of limp. His blood pressure was 124/78.

"Examinations of the cervical spine and upper extremities showed excellent motion with a very good grip in both hands.

" * * * The examination of the back revealed that he stood erect. A plumb bob dropped from the seventh cervical spine fell one half inch to the right of the gluteal cleft. He did stand with an increase dorsal kyphosis. He had a funnel chest or pectus excavatum. He could flex forward with the knees straight to within 10 of the floor. There was no tenderness to the palpation along the spine. Extension and lateral bending to the right and left, respectively, was satisfactory. No muscle spasm was noted. He could extend one and both knees in the sitting position. The reflexes at the knees were present with reinforcement. When I was tapping him on his knees, his shoulders would go up. There was no ankle reflex on the left. The left calf measured one half inch smaller that the right. He did not cross the left knee over the right, as well as the opposite way. Straight leg raising was possible to 70 degrees bilaterally. There was some limitation of the rotation in the left hip joint. The legs were essentially equal. The thighs, measured at a point four inches above the upper poles of the patellae, were equal.

"X-RAY REPORT : X-rays taken in my office on the day of examination of the lumbar and lumbosacral spines were as follows:

"This man now has degenerative arthritis of the lumbar and lumbosacral spines with osteophyte formation. He also has osteoarthritis of the small joints of the back. The lumbosacral interspace is narrowed, and I feel there also is a defect in the posterior arch with very slight forward slippage of the fifth lumbar vertebra. I think he had a spondylolysis or very minimal spondylolisthesis, which seems to be to me quite definite.

"CONCLUSION : It is difficult for me to see at this time how this man will qualify for any type of manual labor. He certainly should not do heavy lifting or twisting with the back he has. He could do some type of menial work, which was not heavy, but that would depend on his training. He is now 64 years old, and that adds another factor to the situation. He is about ready to finish work, because of his age. I feel he is permanently and totally disabled as far as his back is concerned, and he would not qualify at this time for the type of work which he did do."

The Attorney Examiner for the commission also recommended that relator be found permanently and totally disabled.

Relator's file was then referred to Dr. J. A. Koenigshoff of the commission's medical staff. He is not a orthopedic specialist. After reviewing relator's file, including Dr. Hein's report, but without a personal examination, Dr. Koenigshoff recommended that the motion for permanent and total disability be medically disapproved. He stated in his medical opinion: "This claim has been recognized for low back strain and left sacro-iliac strain. * * *

"In reviewing the report of Industrial Commission Specialist, Dr. Ned B. Hein, it is noted that claimant has...

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  • State ex rel. Rouch v. Eagle Tool & Mach. Co., 85-1608
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    • September 23, 1986
    ...Comm., supra; State, ex rel. Paragon, v. Indus. Comm. (1983), 5 Ohio St.3d 72, 74, 448 N.E.2d 1372; State, ex rel. Kramer, v. Indus. Comm. (1979), 59 Ohio St.2d 39, 42, 391 N.E.2d 1015 Recognizing the commission's sole and virtually conclusive discretion in extent-of-disability cases, evide......
  • State ex rel. Teece v. Industrial Commission of Ohio
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    • December 23, 1981
    ...becomes appropriate. State ex rel. Hutton v. Indus. Comm. (1972), 29 Ohio St.2d 9 (278 N.E.2d 34)." State ex rel. Kramer v. Indus. Comm. (1979), 59 Ohio St.2d 39, 42, 391 N.E.2d 1015. In essence, relator-appellant argues that the commission abused its discretion in denying her claim for per......
  • State ex rel. Sears, Roebuck & Co. v. Industrial Com'n of Ohio
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    • July 3, 1990
    ...its factual conclusions. Paragon, supra, at 74, 5 OBR at 128, 448 N.E.2d at 1374, citing State ex rel. Kramer v. Indus. Comm. (1979), 59 Ohio St.2d 39, 42, 13 O.O.3d 30, 31, 391 N.E.2d 1015, 1017. R.C. 4123.57 (entitled "Partial disability compensation") governs the schedule and number of w......
  • State ex rel. Case v. Industrial Com'n of Ohio, 86-667
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    ...Commission can base its conclusion, mandamus will lie to correct the resulting abuse of discretion. See, e.g., State, ex rel. Kramer, v. Indus. Comm. (1979), 59 Ohio St.2d 39, 42 ." See, also, State, ex rel. Hutton, v. Indus. Comm. (1972), 29 Ohio St.2d 9, 278 N.E.2d 34 . Such circumstances......
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