|
|
| 2007 | 2006 | 2005 | 2004 | 2003 | 2002 | 2001 | 2000 | Search | Upcoming cases |
Public Information Home
Court Ruling Requiring Medical Examination In Workers’ Comp Case Is Not Final, Appealable Order
2005-1355 and 2005-1473. Myers v. Toledo, 2006-Ohio-4353.
Lucas App. No. L-04-1241, 2005-Ohio-3207. Judgment reversed.
Moyer, C.J., Resnick, Pfeifer, Lundberg Stratton, O'Connor, O'Donnell and Hendon, JJ., concur.
Sylvia Sieve Hendon, J., of the First Appellate District, sitting for Lanzinger, J.
Opinion: http://www.supremecourtofohio.gov/rod/newpdf/0/2006/2006-Ohio-4353.pdf
(Sept. 6, 2006) The Supreme Court of Ohio held today that when a trial court hearing a special proceeding such as a workers' compensation case grants a motion under Civil Rule 35(a) requiring a party to undergo a physical or mental examination, such orders are not “final orders” subject to immediate review by a court of appeals. The Court's unanimous decision was written by Chief Justice Thomas J. Moyer.
The case involved a workers' compensation claim filed by Kenneth Myers, an employee of the city of Toledo who was injured in the course of his job duties when a city truck ran over his foot. His injuries required the amputation of a toe. Myers was granted state workers' compensation benefits for his injury. Three years later, Myers complied with a directive from the Bureau of Workers' Compensation (bureau) that he be examined by a bureau-selected neurologist, Dr. Carvalho. Dr. Carvalho found that Myers was suffering from post-traumatic causalgia (peripheral nerve pain near the site of an old injury) and that his condition had not reached maximum medical improvement.
Based on the findings of Dr. Carvalho's examination, Myers filed a new claim seeking additional workers' compensation benefits for post-traumatic causalgia. The new claim was initially allowed by the bureau, but later denied by an Industrial Commission staff hearing officer. After an administrative appeal was unsuccessful, Myers appealed the denial of his causalgia claim to the Lucas County Common Pleas Court.
During pretrial proceedings, the bureau notified Myers it was requesting an examination by an independent physician chosen by the bureau pursuant to Civil Rule 35 (A). Myers and his attorney were notified of the name and location of the physician the state had selected and a scheduled time for the examination. Myers refused to appear for the scheduled examination, arguing that he had already submitted to an examination by a bureau-selected doctor when he was examined by Dr. Carvalho. The bureau then filed a motion asking the trial court to order Myers to appear and cooperate with a new independent medical examination (IME). The trial court issued the requested order.
Myers appealed the IME order to the 6th District Court of Appeals. As a threshold issue, the 6th District considered whether it had jurisdiction to immediately consider the IME order as a separate legal issue, or must wait to review the legality of the examination order until after the trial court had issued a final ruling on Myers' underlying claim. The court of appeals held that the IME order in this case met the statutory definition of a “final order” subject to immediate appellate review. Having accepted jurisdiction, the court of appeals went on to reverse the trial court and vacate the order compelling Myers to submit to an IME.
The bureau appealed the 6th District's ruling to the Supreme Court. The Justices agreed to hear arguments on the procedural question of whether a trial court's IME order in a special proceeding such as a workers' compensation appeal is or is not a “final order” subject to immediate review by a court of appeals.
In today's unanimous decision, the Supreme Court answered that question in the negative. Writing for the Court, Chief Justice Moyer said the IME order in this case did not meet the criteria set forth in either of two subsections of R.C. 2505.02(B) which define final, appealable orders.
“R.C. 2505.02(B)(2) defines an order as final if it is made in a special proceeding and affects a substantial right,” wrote the Chief Justice. While a workers' compensation case such as Myers' is a special proceeding, he noted, Ohio and federal case law have held that: “A party to a cause of action in which the physical condition of the party is in controversy does not have a substantial right to prevent a court from ordering a physical examination. Therefore, a court order requiring a party to submit to an independent medical examination, for good cause shown, does not affect a substantial right and is not a final appealable order under R.C. 2505.02(B)(2).”
Chief Justice Moyer also found that the trial court's IME order was not “final” under an alternative legal provision, R.C. 2505.02(B)(4), that sets as one of its requirements that the order must be a “provisional remedy.” Citing statutory language adopted in 1998 that specifically limits “provisional remedies” to discovery orders involving a privileged matter, the Chief Justice wrote that “The canon expressio unius est exclusio alterius tells us that the express inclusion of one thing (in the language of a statute) implies that exclusion of the other. … The General Assembly stopped short of including all discovery orders in the provisional-remedy section. The request for a physical examination under Civ.R. 35(A) is a discovery order that is not a provisional remedy and is not a final, appealable order under R.C. 2505.02(B)(4).”
Judge Sylvia Sieve Hendon of the 1st District Court of Appeals sat in the case in place of Justice Judith Ann Lanzinger.
Contacts
Stephen P. Carney, 614.466.8980, for
the Ohio Attorney General and Bureau of Workers' Compensation.
Mark G. Williams-Young, 419.242.1555, for Kenneth Myers.
Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion released by the Court, but only for those cases considered noteworthy or of great public interest. Opinion summaries are not to be considered as official headnotes or syllabi of Court opinions. The full text of this and other Court opinions from 1992 to the present are available online from the Reporter of Decisions: http://www.supremecourtofohio.gov/ROD/newpdf/. In the Full Text search box, enter the eight-digit case number at the top of this summary and click "Submit."