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State ex rel Fries v. Administrator6/25/2002
the commission may reject the conclusion of a rehabilitation report and draw its own conclusion from the same medical information. See State ex rel. Ewart v. Indus. Comm. (1996), 76 Ohio St.3d 139, 141. Clearly, the Verbanek court does not reject the concept that medical reports can also contain severable parts.
Given the above analysis, the issue before this court, under Zamora, is whether Dr. Boyd's disability opinion was necessarily implicitly rejected when the commission additionally allowed the industrial claim for the three psychological disorders. The magistrate finds that the commission's implicit rejection of Dr. Boyd's opinion that the claim should solely be allowed for a "Major Depressive Disorder, Single Episode, Moderate," does not include a rejection of Dr. Boyd's disability opinion that the major depressive disorder precludes a return to the former position of employment. Moreover, that Dr. Boyd found that the major depressive disorder was moderate, rather than severe, does not detract from the evidentiary value of his disability opinion.
The second issue is whether the commission could use Dr. Boyd's September 15, 1998 disability opinion to fashion a TTD award beginning September 15, 1998, even though Dr. Boyd never certified TTD for a specific period of time.
It has been repeatedly held that an examining doctor cannot opine upon the claimant's disability prior to the examination date. State ex rel. Case v. Indus. Comm. (1986), 28 Ohio St.3d 383; State ex rel. Foreman v. Indus. Comm. (1992), 64 Ohio St.3d 70; State ex rel. Abner v. Mayfield (1992), 62 Ohio St.3d 423; State ex rel. Youghiogheny & Coal Co. v. Zelek (1991), 62 Ohio St.3d 305; State ex rel. Basluke v. McGraw Nursing Home (1993), 66 Ohio St.3d 521; State ex rel. Foor v. Rockwell Internatl. (1997), 78 Ohio St.3d 396; and State ex rel. Rawls v. Miami Margarine Co. (1997), 80 Ohio St.3d 357. However, an examining doctor's prospective disability opinion is not considered inherently nonprobative. It has been held, for example, that it was not unreasonable for an examining doctor to offer an estimated return-to-work date that was eleven to twelve months distant from the examination date. State ex rel. Kroger Co. v. Indus. Comm. (1997), 80 Ohio St.3d 483, 488.
In the instant case, Dr. Boyd opined, in effect that, as of the December 15, 1998 examination date, relator was unable to return to his former position of employment due to his depression. Dr. Boyd further opined that relator had not reached maximum medical improvement but Dr. Boyd did not estimate when the injury might reach maximum medical improvement. Implicit in the opinion is that relator's condition will remain temporary for some unspecified period of time.
The magistrate finds that State ex rel. Nelson McCoy Pottery Co. v. Wilson (1990), 56 Ohio St.3d 28, is instructive as to the potential evidentiary value of Dr. Boyd's report.
In Nelson McCoy, the commission awarded TTD from July 1, 1985 through September 17, 1986, when the disability from pulmonary silicosis was found to have become permanent. The commission's award was based upon the reports of Dr. Wehr and the September 17, 1986 report of Dr. Knight who found that the occupational disease had become permanent. Dr. Wehr found, as late as 1985, that claimant had difficulty breathing and experienced coughing spells accompanied by marked chest pain. However, neither Dr. Wehr nor Dr. Knight ever specifically opined that the claimant was unable to return to his former position of employment as a slip maker where he was exposed to silica dust.
In Nelson McCoy, the court held that the commission's determination constitutes a legal conclusion
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