IN THE SUPREME COURT OF OHIO

Transcription

1 IN THE SUPREME COURT OF OHIO State of Ohio, ex rel. Old Dominion Freight Line, Inc., V. Appellant, Industrial Commission of Ohio and Case No On Appeal Court of District Court of Appeals Case No. I lap-350 from the Franklin County Appeals, Tenth Appellate Robert L. Mason, Appellees. s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s- s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s- s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s- REPLY BRIEF OF APPELLANT OLD DOMINION FREIGHT LINE, INC. s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s- Mark A. Shaw ( ) (counsel of record) Melissa A. Ebel ( ) EASTMAN & SMITH LTD. 100 E. Broad Street, Suite 2100 Columbus, Ohio Telephone: (614) Fax: (614) MAShaw@eastmansmith.com MAEbeI@eastmansmith.com Attorneys@r Appellant Old Dominion Freight Line, Inc. Eric Tarbox ( ) Assistant Attorney General Workers' Compensation Section 150 East Gay Street, 22nd Floor Columbus, Ohio Telephone: (614) Fax: (614) eric.tarbox@ohioattorneygeneral.gov AttoNney fon Appellee Industrial Commission of Ohio Katie W. Kimmet ( ) Nicole E. Rager ( ) Connor, Evans & Hafenstein, LLP 501 Soutli High Street Columbus, Ohio Telephone: (614) Fax: (614) nrager@cehlaw.com L.,::,._.._. j.._

2 Attorney for Appellee Robert L. Mason s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-

3 TABLE OF CONTENTS TABLE OF AUTHORITIES... iv ARGUMENT... 1 A. Proposition of Law No. 1: Where an employer timely submits medical evidence pursuant to Ohio Adm. Code (C)(4)(b), the Industrial Commission must submit such evidence to the examining physician selected by the claims examiner prior to the date of the examination B. Proposition of Law No. 2: Old Dominion's Proposition of Law No. 1 is properly before this Court C. Proposition of Law No. 3: A finding of harmless error is erroneous when such finding is based upon a speculative inquiry into what might have occurred regarding hearsay medical reports D. Proposition of Law No. 4: The Industrial Commission abused its discretion in using the reports of Drs. Fitz and Malinky... 9 CONCLUSION...>... 9 CERTIFICATE OF SERVICE iii

4 TABLE OF AUTHORITIES Cases Cline v. Ohio Bur. ofmotor Vehicles, 61 Ohio St.3d 93, 573 N.E.2d 77 (1991)... I Colurnbus & Franklin County Metro. Park Dist v. Shank, 65 Ohio St. 3d 86, 600 N.E.2d 1042 (1992) Crawford Cole v. Lucas Cty. Dept. of Job & Family Servs., 121 Ohio St.3d 560, 2009-Ohio- 1355, 906 N.E.2d Dailey v. Trimble, 10th Dist. No. 95APE07-951, 1995 Ohio App. LEXIS 6120 (Dec. 29, 1995). 1 Davis v. Galla, 6th Dist. Lucas No. L , 2008-Ohio-3501 (Jul. 7, 2008)...6 Myers v. Toledo, 110 Ohio St.3d 218, 2006-Ohio-4353, 852 N.E.2d Redmound v. Big Sandy Furniture, Inc., 4th Dist. Lawrence No. 09CA13, 2009-Ohio-6824 (Dec. 21, 2009) State ex rel. Butler Twp. Bd of Trs. v. Montgomety County I3d of Comm'rs, 124 Ohio St.3d 390, 2010-Ohio-169, 922 N.E.2d State ex rel. A^litchell v. Robbins & Myers, Inc., 6 Ohio St.3d 481, 453 N.E.2d (1983)...9 United States v. Gonzalez-Lopez, 548 U.S. 140, S.Ct (2006)... 8 Page Rules Civ.R. 53(D)(3)(b)(iv)..._... 6 Regulations Ohio Adm. Code (C)(4)(b)...1-5, 7, 9 iv

5 ARGUMENT A. Proposition of Law No. 1: Where an employer timely submits medical evidence pursuant to Ohio Adm. Code (C)(4)(b), the Industrial Commission must submit such evidence to the examining physician selected by the claims examiner prior to the date of the examination. When a statute or regulation is ambiguous, rules of construction may be applied to determine the meaning of the statute or regulation. See Columbus & Franklin County Metr o. Park Dist. v. Shank, 65 Ohio St. 3d 86, 103, 600 N.E.2d 1042 (1992), fn. 17 ("[W]here uncertainty exists regarding legislative or administrative intent in the drafting of a statute or regulation, all rules of construction are available to assist a reviewing court."). When interpreting the meaning of a statute or regulation, courts cannot give selective effect to the words contained within the statute or regulation. Dailey v. Trimble, 10th Dist. No. 95APE07-951, 1995 Ohio App. LEXIS at *20 (Dec. 29, 1995) ("A court must give meaning to the words used and not delete words used or insert words not used."), citing Cline v. Ohio 73ur. of Motor Vehicles, 61 Ohio St.3d 93, 97, 573 N.E.2d 77 (1991). Here, Appellees Robert Mason ("Mason") and Industrial Commission of Ohio ("Industrial Commission") assert that no specific language within Ohio Adm. Code (C)(4)(b) requires the Industrial Commission to submit the employer's medical evidence prior to the date of the physicians' medical examinations. (Merit Brief of Appellee, Robert L. Mason, hereafter "Mason Brief," at p. 7; Brief of Appellee, Industrial Commission, hereafter "Industrial Commission Brief," at p. 7). Contrary to Appellees' assertions, however, a reading of Ohio Adm. Code (C)(4)(b) in its entirety reveals that an employer's timely-submitted medical evidence must be forwarded to the exainining physicians p rior to their examinations 1

6 when the employer notifies the Industrial Commission of its intent to submit medical evidence within 14 days of the date of the Industrial Commission acknowledgement letter. Specifically, Ohio Adm. Code (C)(4)(b) provides the following: The employer shall be provided fourteen days after the date of the industrial commission acknowledgment letter provided for in paragraph (C)(2) of this rule to notify the commission if the employer intends to submit medical evidence relating to the issue of permanent total disability compensation to the commission. Should the employer make such written notification the employer shall submit such medical evidence to the commission within sixty days after the date of the commission acknowledgment letter unless relief is provided to the einployer under paragraph (C)(4)(d) of this rule. Should the employer fail to make such written notification within fourteen days after the date of the commission acknowledgment letter, the employer shall be provided sixty days after the date of the commission acknowledgement letter to submit medical evidence relating to the issue of permanent total disability compensation to the commission, but the scheduling of the injured worker for appropriate medical examinations by physicians selected by the commission under paragraph (C)(5)(a)(iii) of this rule will proceed without delay. For the purposes of processing permanent total disability ("PTD") applications, Ohio Adm. Code (C)(4)(b) creates two categories of employers: (1) employers who submit a letter notifying the Industrial Commission of their intent to submit medical evidence within 14 days of the acknowledgement letter; and (2) employers who fail to submit a letter notifying the Industrial Commission of their intent to submit medical evidence within 14 days of the acknowledgement letter. Selective effect would be given to the words contained within Ohio Adm. Code (C)(4)(b) if the Court were to accept and follow Appellees' argument that the rule contains no requirement for the Industrial Commission to submit the employer's medical evidence ri t^ or to the date of the physicians' examinations, More specifically, the 14-day notice requirement would have to be rendered entirely meaningless if one were to accept and follow Appellees' argument. Essentially, by ignoring the 14-day notice requirement, the two categories of 2

7 employers illustrated above would be treated the same. For the second category of employers listed above (i.e., those who did not notify the Industrial Commission of their intent to submit medical evidence within 14 days of the date of the Industrial Commission acknowledgment letter), Ohio Adin. Code (C)(4)(b) orders the scheduling of the medical examination "without delay." Ohio Adm. Code (C)(4)(b). No language regarding the scheduling "without delay" exists for the first category of employers. By accepting Appellees' argument, the scheduling of a medical examination could occur "without delay," even when an employer notifies the Industrial Commission of its intent to subniit medical evidence within 14 days of the date of the acknowledgement letter. Such an interpretation is wholly inconsistent with the language of the rule. Moreover, Appellees' interpretation violates the canon of statutory construction "expressio unius est exclusion alterius," which "tells us that the express inclusion of one thing implies the exclusion of the other." State ex rel. Butler Twp. Bd of Trs. v. Montgomery County Bd of Conzm'rs, 124 Ohio St.3d 390, 2010-Ohio-169, 922 N.E.2d 945, 21, quoting Crawford- Cole v. Lucas Cty. Dept. of Job & Family Ser vs., 121 Ohio St.3d 560, 2009-Ohio-1355, 906 N.E.2d 409, 42, quoting Myers v. Toledo, 110 Ohio St.3d 218, 2006-Ohio-4353, 852 N.E.2d 1176, 24. The requirement to schedule medical examinations "without delay" was included only for the situation where the employer fails to notify the Industrial Commission of its intent to submit medical evidence within 14 days of the date of the acknowledgement letter. The Industrial Commission, within its rule-making authority, could have included the "without delay" language to apply to both categories of employers within Ohio Adm. Code (C)(4)(b) but did not do so.] Therefore, according to the canon of expressio unius est ' As explained in appellant Old Dominion's Merit Brief at pp.11-13, prior to April 1, 2004, Ohio Adm. Code (C)(4)(b), did not include a 14 day notice provision for employers, nor any language regarding whether or not 3

8 exclusion alterius, the scheduling of medical examinations should not proceed "without delay" where an employer notifies the Industrial Commission of its intent to submit medical evidence within 14 days of the date of the Industrial Commission acknowledgement letter. Once an employer does provide such timely notice, it must be assured that its medical evidence will be provided to the Industrial Commission medical examiner prior to the examination. Appellees assert, without pointing to any provision within Ohio Adm. Code , that the Industrial Comrnission medical examiners will receive and review all medical reports obtained by an employer, even in situations where the employer fails to provide its 14 day notice. (Mason Brief, p. 7; Industrial Commission Brief, p. 9). This assertion, however, completely ignores the provision of the rule that indicates that in such situations, the Industrial Commission medical examinations shall proceed "without delay." The Industrial Commission medical examination would be scheduled and completed before the employer submits its medical evidence within the 60 day time limit. Therefore, when an employer does in fact provide timely notice of its intent to submit medical evidence in defense of the PTD application, the rule must be read to assure the employer that its medical evidence will be provided and reviewed by the Industrial Commission medical examiner prior to such examination. Otherwise, the rule has no meaning. Appellant Old Dominion Freight Line, Inc. ("Old Dominion") timely notified the Industrial Commission of its intent to submit medical evidence. (Supp. 374). Additionally, Old Dominion obtained medical evidence and submitted the same to the Industrial Commission within 60 days after the date of the Industrial Commission acknowledgment letter as required by medical examinations by the Industrial Commission were to occur "without delay." After the 2004 amendment, the rule now contains specific language regarding this situation and must be interpreted as having significance between situations where employers timely provide notice of intent to submit medical evidence and those situations where employers do not provide timely notice. 4

9 Ohio Adm. Code (C)(4)(b). (Supp , , ). Therefore, the Industrial Commission erred by failing to forward Old Dominion's medical evidence (i.e., the medical reports by Drs. Clary, Sterle, and Murphy) to Drs. Fitz and Malinky (the Industrial Commission medical specialists) prior to their respective examinations of Mr. Mason. Contrary to Appellees' assertions, Old Dominion is not adding a "mandatory requirement to the Code that the Commission's examinations cannot and shall not take place until such time that all potentially relevant medical evidence is sent." (Mason Brief, p. 7). To the contrary, Old Dominion is simply asking the Court to read Ohio Adm. Code (C)(4)(b) in its entirety, which, as illustrated above, shows that a mandatory requirement to forward the enlployer's timely-submitted evidence to the physicians prior to their examinations is not being added to the rule, but is already contained within the rule. The Industrial Commission expressly acknowledged its mistake of failing to forward Old Dominion's medical evidence to Drs. Fitz and Malinky prior to their respective examinations. (Industrial Commission Brief, p. 2). Old Dominion strictly complied with the requirements set forth within Ohio Adm. Code (C)(4)(b) by timely notifying the Industrial Commission of its intent to submit medical evidence and submitting its evidence within 60 days after the date of the Industrial Commission acknowledgment letter. Therefore, Old Dominion is entitled to mandamus relief. B. Proposition of Law No. 2: [Addressing Appellee Industrial Commission's Proposition of Law No. 21 Old Dominion's Proposition of Law No 1 is properly before this Court. Contrary to Appellee Industrial Commission's argument otherwise, Old Dominion's proposition of law no. 1 is properly before this Court. "It is clear under Ohio law that when a 5

10 final judgment has been entered terminating an entire case, all prior interlocutory orders will merge into the final judgment and will be appealable at that time." Davis v. GalZa, 6th Dist. Lucas No. L , 2008-Ohio-3501 (Jul. 7, 2008) at P6; see also, Redmound v. Big Sandy Furniture, Inc., 4th Dist. Lawrence No. 09CA13, 2009-Ohio-6824 (Dec. 21, 2009) at P38 ("[w]hen a final judgment is issued, all interlocutory orders are merged into the final judgment. [T]hus, an appeal from a final judgment allows an appellant to challenge both the final judgment and any interlocutory orders merged with it.") (lnternal citations omitted.) Here, the Tenth District Court of Appeals entered an interlocutory order on May 31, 2012, denying Magistrate Macke's December 16, 2010, decision which recommended Old Dominion's request for a writ of mandamus be granted and specifically found that: The Commission failed to follow its oti^vn rules when it failed to submit relator's timely filed medical evidence to its examining physicians prior to their examinations. Relator had a clear legal right under the Commission's rules to have its medical evidence, namely the reports of Drs. Sterle, Clary, and Murphy, submitted to examining physicians Fitz and Malinky prior to their examinations of Claimant. (App. 53 at 54.) Because Magistrate Macke recommended the Tenth District grant issue a writ of mandamus, there was no need for Old Dominion to file objections as outlined under Civ,R. 53(3). Old Dominion, however, timely filed a notice of appeal of the Tenth District's May 31, 2012 decision sustaining the objections made by Mason and the Industrial Commission into this Court on July 16, (App ). "This Court dismissed Old Dominion's appeal for lack of a final appealable order pursuant to R.C (App. 28). The case returned to the Tenth District and on March 12, 2014, Magistrate Macke issued a decision recommending that the Tenth District deny Old Dominion's request for a writ of mandamus regarding the remaining outstanding arguments. Old Dominion timely filed objections to the Magistrate's decision 6

11 regarding the outstanding arguments, which were overruled by the Tenth District on May 30, (App. 4.) Old Dominion timely filed a notice of appeal to this Court on July 11, 2014, and specifically noted the July 16, 2012 appeal in case no. 1.1AP-350 and indicated that all issues have since been addressed by the Tenth District through its May 30, 2014 judgment and were properly before this Court. (App. 2.) The Tenth District's May 31, 2012 decision merged into its May 30, 2014, final appealable order and is now properly before this Court. C. Proposition of Law No. 3: A finding of harmless error is erroneous when such finding is based upon a speculative inguiry into what might have occurred regarding hearsay medical reports. Appellants assertion that Old Dominion was not materially prejudiced because the Industrial Commission ultimately obtained "addendum reports" from Drs. Fitz and Malinky defies the plain language of Ohio Adm. Code (C)(4)(b) and Ohio Adm. Code (C)(5)(a) which direct that all timely-submitted relevant documents pertaining to an applicant's request for PTD compensation - including the employer's evidence - be submitted to the Industrial Commission's examining physician p rior to his or her respective examination. Moreover, as set forth in Old Dominion's Merit Brief, the Tenth District's finding of harmless error (i.e. no prejudice) is based on speculation. It is impossible to know what the opinions of Drs. Fitz or Malinky would have been had they been presented with Old Dominion's evidence prior to their examinations. Obtaining addendum reports was not an adequate remedy. The ultimate impact of the Industrial Commission's failure to follow its own rules and submit Old Dominion's medical evidence to Drs. Fitz and Malinky cannot be determined. A.s stated in Old Dominion's Merit Brief, the purpose of Ohio Adm. Code (C)(4)(b) is to ensure an employer that the medical evidence it obtains in defense of a PTD 7

12 application will be reviewed and considered by an Industrial Commission examiner p rior to his or her examination of the claimant. This value to the employer is not trivial and should not simply be casually ignored and diminished by asserting it was "harmless error." It is unlikely that an injured worker would find it simply "harmless error" should his or her medical evidence in support of his PTD application not be provided to the Industrial Commission. examiner(s) before the examination(s) and opinions are established. Appellee Mason argues the addendum reports by Drs. Fitz and Malinky were an "equally reasonably option" for resolution of the Industrial Commission's failure to submit Old Dominion's timely-submitted medical evidence to the physicians prior to their exaininations. (Mason Brief, p. 9; see also Industrial Commission Brief, p. 11). The addendum reports were not an equally reasonable option as deposing Drs. Fitz and Malinky because the bases for the doctors' opinions could not be explored through the addendum reports. In fact, the addendum reports issued by Drs. Fitz and Malinky were simple one or two sentence answers without any explanation as to why their opinions had not changed. (Supp. 467, , 470). Such reports failed to provide any insight into the rationale behind the ultimate opinions of Drs. Fitz and Malinky. The lack of an opportunity to depose Drs. Fitz and Malinky effectively created speculation as to whether the physicians' opinions would have been. any different if they were provided Old Dominion's medical evidence prior to their exanainations. See United States v. Gonzalez-Lopez, 548 U.S. 140, 150, S.Ct (2006). A determination of "what might have been" was improper without a further explanation for the rationale behind the physicians' ultimate opinions. 8

13 D. Proposition of Law No. 4: The Industrial Commission abused its discretion in usina the reports of Drs. Fitz and Malinky. Appellants, like the Tenth District, maintain that the staff hearing officer did not err in considering the reports of Drs. Ward, May, or Howard because he merely considered them and did not rely upon those reports. (Industrial Commission Brief at 12; Mason Brief at 13), This cannot be the correct analysis. As set forth in Appellee Old Dominion's Merit Brief, the reports of Drs. Ward, May, and Howard are all fatally flawed. The Industrial Commission is required to cite the evidence upon which it relied to reach its decision. State ex rel. Mitchell v. Robbins & Myers, Inc., 6 Ohio St.3d 481, 453 N.E.2d (1983). It defies logic that the Industrial Commission may specifically indicate that it evaluated and ultimately relied upon medical reports based upon other inconsistent and patently flawed reports. The Industrial Commission erred and abused its discretion when the staff hearing officer indicated he used the fatally flawed reports of Drs. Ward, May, and Howard to evaluate the credibility of, and ultimately rely upon, the reports of Drs. Fitz and Malinky. CONCLUSION Appellant Old Dominion complied with the requirements of Ohio Adm. Code (A); therefore, Old Dominion's medical evidence should have been submitted to the Industrial Commission examining physicians p rior to their examinations of Mr. Mason and their opinions formed. This rule does not allow the Industrial Commission to schedule examinations "without delay" where an employer timely notifies the Industrial Comnlission of its intent to submit medical evidence. 9

14 The Industrial Commission should be required to follow its own rules as tvxitten. Moreover, the Industrial Commission's denial of Old Dominion's request to depose Drs. Fitz and Malinky and utilization of patently flawed medical reports to "evaluate the credibility ofl' and ultimately rely upon, the reports of Drs. Fitz and Malinky further evidence the Industrial Commission's clear abuse of discretion in this matter. Therefore, Old Dominion respectfully requests this Court reverse the Tenth District's Decision and issue a writ of mandamus ordering the Industrial Commision to vacate its staff order typed March 26, 2010, and rnailed March 31, 2010, and to enter a new order denying Mason's application for PTD compensation. In the alternative, Old Dominion requests that the Court adopt the relief as initially set forth by Magistrate Kenneth Macke in this December 16, 2011 decision granting a writ of mandamus ordering the Industrial Commission to vacate its staff order of March 16, 2010 awarding PTD compensation, and to conduct ftirther proceedings regarding the PTD application after the elimination of the reports of Drs. Fitz and Malinky from further evidentiary consideration, and ordering the Industrial Commission to schedule new appropriate medical examinations and to submit the medical evidence of both Mason and Old Dominion p rior to the examinations as required by the Industrial Commission's rules. (App ) Respectfully submitted, EASTMAN & SMITH LTD. _ ----,,^r ^f, Mark A. haw ( ) Melissa k Ebel ( ) Attorneys for Appellant Old Dominion Freight Line, Inc. 10

15 CERTIFICATE OF SERVICE The foregoing Reply Brief of Appellant Old Dominion Freight Line, Inc. has been sent by ordinary U.S. Mail this 28th day of January, 2015 to: Katie W. Kimmet, Connor, Evans & Hafenstein, LLP, 501 South High Street, Columbus, Ohio 43215, attorney for Appellee Robert L. Mason; and to Eric Tarbox, Assistant Attorney General, Workers' Compensation Section, 150 East Gay Street, 22nd Floor, Columbus, Ohio , attorney for Appellee Industrial Commission of Ohio.,^ /t (,^3^^ " ^.. ^,^... '^'7' ry.^,' _r.-3,,,^,d Atton y for Appellant Old D6 rfiinion Freight Line, Inc. 11