10th District says man failed to delineate specific objection to earlier Industrial Commission ruling
KEITH ARNOLD, Daily Reporter Staff Writer
A Franklin County appellate court overruled the objections of a Warren man seeking workers' compensation benefits for loss of use of both legs in an appeal of an earlier ruling by the Industrial Commission of Ohio.
The three-judge panel of the 10th District Court of Appeals found that Kevin Lamb failed to assert an argument against the commission's ruling in his appeal.
"Relator does not delineate a specific objection, but essentially reargues the same points addressed in the magistrate's decision," 10th District Judge Patrick McGrath wrote for the court.
Magistrate Stephanie Bisca Brooks held that, although the commission awarded Lamb permanent total disability compensation based upon the man's allowed condition, the commission did not determine, at that time, that Lamb had sustained a loss of use of both legs. The magistrate indicated the commission had relied upon the reports of Drs. V.G. Raghavan and Frank G. Veres to grant Lamb's application for PTD compensation.
According to the magistrate's finding, Raghavan noted several times in his report that Lamb maintained he was unable to stand or walk. Raghavan, however, did not perform any tests to determine whether relator could do so. In Veres' report, it was noted Lamb was obese and currently wheelchair bound secondary to his allowed condition. Nothing in that report established that the man lost the use of both legs.
"All the physicians who examined relator acknowledged that he uses a wheelchair because, in relator's opinion, he cannot walk," the magistrate wrote. "There simply is no medical evidence in the record which establishes that relator cannot stand or walk due to his allowed condition. Further, the fact that relator has been provided a wheelchair is likewise not conclusive evidence that he is incapable of standing or walking.
"Relator simply did not meet his burden of proof and the commission did not abuse its discretion in denying his motion for a total loss of use."
According to case summary, Lamb sustained a work-related injury on April 30, 1993, and his claim has been allowed for "herniated disc L5-S1." In 1996, he filed an application for PTD compensation. His application was heard before a staff hearing officer on July 7, 1999 and was granted. Specifically, the hearing officer relied upon the medical reports of Raghavan and Veres as well as a vocational report.
In February 2009, Lamb filed a motion seeking a scheduled loss of use award for the loss of use of both legs. His motion was supported by Veres' signature at the bottom of a letter from Lamb's attorney asking that Veres sign the bottom portion of the letter if he agreed that, for all intents and purposes, relator had lost the use of his legs because of his work-related injury.
An examination by Dr. Ronald Yarab Jr. in 2009 determined Lamb's request for total loss of use of lower extremities was not substantiated as submitted, summary detailed. Lamb's motion for a scheduled loss of use award was heard before a district hearing officer April 22, 2009 and was denied based upon Yarab's report which concluded in part that the current state of the man's gait dysfunction was due to nonallowed condition in his claim.
Lamb's appeal was heard before a staff hearing officer the following month, with the outcome affirming the prior district hearing officer's order.
The man's further appeal was refused by order of the commission mailed June 10, resulting in Lamb filing the mandamus action with the 10th District.
Fellow 10th District judges Peggy Bryant and William Klatt joined McGrath to form the majority.
The case is cited as State ex rel. Lamb v. Indus. Comm., 2010-Ohio-792.
Date Published: March 11, 2010