State ex rel. Jackson Tube Serv., Inc. v. Indus. Comm.,
99 Ohio St.3d 1, 2003-Ohio-2259

SUBJECT
Medical Treatment and TTD for Nonallowed Conditions.

RULE
The Commission must find a causal relationship between the claimant’s disability and the non-allowed conditions that might later become part of the claim, before awarding TTD. Also, authorized surgery for non-allowed conditions does not eliminate the need for a formal recognition of those conditions.

CASE DISCUSSION
Claimant was injured at work resulting in the allowance of his claim for a torn left rotator cuff and other injuries. Claimant underwent surgery and received TTD. The Commission subsequently terminated TTD based upon a finding of MMI.

Later, claimant requested a change of physicians to obtain further treatment from Dr. Paley, who offered a preliminary diagnosis of left shoulder rotator tear and several nonallowed conditions. Dr. Paley proposed further surgery and stated that claimant was not MMI.

Dr. Paley continually reported that claimant's problems were directly attributable to his work related problems. Claimant moved for surgical authorization and TTD. The employer objected, asserting that two of the four conditions were not allowed in the claim. claimant responded that without surgery, there was no way to definitively identify the conditions that were causing his problems.

The Commission granted the motion, in part, ordering payment of the surgery and TTD from the date of surgery through recovery. Employer filed a mandamus proceeding. Although claimant’s preoperative and postoperative diagnoses were similar, claimant continued to have pain, which was attributed to a large defect in the deltoid muscle. This finding prompted a second, unauthorized surgery and another diagnosis.

The court of appeals applied State ex rel. Miller v. Indus. Comm. (1994), 71 Ohio St.3d 229, and determined that the surgery and TTD were causally related to the industrial injury and affirmed the Commission's order. Miller adopted the following tripartite test for 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[s] * * * medically reasonable?’ ” Id. at 232, 643 N.E.2d 113, quoting State ex rel. Noland v. Indus. Comm. (Aug. 27, 1987), Franklin App. No. 86AP-594, 1987 WL 16171.

The Ohio Supreme Court affirmed that portion of the court of appeal’ judgment upholding surgical authorization but reversed the order to pay TTD, and returned the claim to the Commission for further consideration of the relationship between disability and the conditions that might be allowed in the claim.

The Court explained, “on one hand, claimant could not move for additional allowance beforehand, since without the surgery, the problematic conditions could not be identified. On the other hand, the self-insured employer questioned its recourse when ordered to pay for surgery that ultimately revealed any conditions to be nonindustrial. It also feared that payment could be interpreted as an implicit allowance of all of the conditions in the postoperative diagnosis.”

As to TTD, claimant argued that the approval of surgery made compensability automatic. Claimant's position overlooked the fact that only one of the surgeries was preauthorized and nonallowed conditions were diagnosed. The Court noted, “this case underscores the need for formal recognition of any newly identified conditions that are indeed related to the injury. As we have consistently declared, TTD can never be based-even in part-on nonallowed conditions. See State ex rel. Waddle v. Indus. Comm. (1993), 67 Ohio St.3d 452.”