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State ex rel American National Red Cross v. Smith10/25/2005
heavy work, and very heavy work. Under each of those categories, the various physical work activities are defined in accordance with the Ohio Administrative Code. As such, even though Dr. Gurley did not attach a physical capacities evaluation, the magistrate finds that the forms are commonly attached by physicians and referred to by physicians and that there is no evidence in the record to indicate that Dr. Gurley did not understand the consequences of noting that claimant could not perform sedentary work. As such, relator's argument that Dr. Gurley's report should automatically be removed from evidence because he did not set out the physical requirements for sedentary work does not render his opinion unclear.
{ } Furthermore, the magistrate rejects relator's argument that Dr. Gurley relied in part on nonallowed conditions. In his report, Dr. Gurley did note that claimant suffered from chronic residual pain syndrome. Relator contends that, pursuant to State ex rel. Waddle v. Indus. Comm. (1993), 67 Ohio St.3d 452, because Dr. Gurley considered nonallowed conditions, his report cannot constitute "some evidence" upon which the commission could rely. This magistrate disagrees.
{ } Dr. Gurley had been treating claimant for a number of years. In his December 30, 2002 report, Dr. Gurley provided a surgical and treatment history relating to claimant's conditions. It is clear from his reports that he is well aware of the conditions allowed in claimant's claim. Furthermore, considering the medications which claimant is currently taking, his use of a TNS unit, and the cervical epidurals he has had, the record contains significant evidence that claimant has chronic pain relative to his allowed conditions. Chronic pain can be a "symptom" even if it is not recognized as a "condition." Nothing in Dr. Gurley's report indicates that he is opining that claimant's claim should be additionally allowed for "chronic pain syndrome" and, as such, the magistrate finds that relator's reliance on Waddle is misplaced.
{ } Relator also contends that the report of Dr. Nemunaitis cannot constitute "some evidence" upon which the commission could rely. Relator points out that Dr. Nemunaitis assessed a five percent whole person impairment for claimant's allowed condition of contusion of back and points out that, in his report, Dr. Nemunaitis had stated that: "The claimant does have residual biomechanical problems that relate to his lumbar spine." Relator contends that pursuant to State ex rel. Borden Chemical, Inc. v. Mourn, Franklin App. No. 03AP-1213, 2005-Ohio-1121, Dr. Nemunaitis' report must be removed from evidentiary consideration.
{ } In Borden, this court found that the report of Dr. Lundeen, upon which the commission relied to grant PTD compensation, was flawed because Dr. Lundeen included the nonallowed cervical disc surgery in his calculation of whole person impairment. Dr. Lundeen had assessed a 60 percent whole person impairment for the cervical spine, of which nine percent of the impairment was specifically attributed to the cervical disc surgery with residual pain and rigidity. This court noted that nothing in the record showed that the 1982 surgery which Dr. Lundeen considered was causally related to the industrial injury .
{ } The present case differs from Borden. In the present case, although Dr. Nemunaitis arguably referenced a nonallowed condition as part of his overall evaluation of claimant, he did not, as in Borden, assess a percentage of impairment relative to any nonallowed condition. Relator points out that Dr. Nemunaitis assessed a five percent impairment relative to the allowed condition of contusion of back; however, as referenced in the findings of fact, Dr.
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