|
|
by Justice Paul E. Pfeifer
Some jobs are just worse than others, and Sally Moore had one of them. Sally worked in the molding department of International Truck & Engine (ITE). As part of her duties, she sanded truck hoods in preparation for painting. That might not sound too bad, but as a result of the sanding, dust permeated Sally’s immediate work area.
The chemical composition of the dust quickly caused Sally to develop white blister-like spots on her face, neck, and arms. Unfortunately, the condition – ultimately diagnosed as “prurigo nodularis” – is accompanied by an “incredible itching sensation” that even the “most potent medicines” cannot help.
Patients typically scratch these areas “even to the point of causing scarring.” After years of exposure, Sally indeed ended up with scarring, which was also accompanied by hypopigmentatioin and eventually lichenification, which is a “thickening of the skin with exaggeration of the normal skin markings, giving the skin a leathery bark-like appearance.”
Medical opinion was unanimous that Sally’s condition was directly related to her exposure to the dust. A workers’ compensation claim was initially allowed for the skin disorder and later for “depressive disorder.”
In 2002, Sally began treatment with a plastic reconstructive surgeon, Dr. Haroon Aziz. In a November 2004 letter, Dr. Aziz described Sally’s course of treatment. Through years of laser treatment, her scars were less noticeable and the skin on her face and neck area was smoother.
At the time, Dr. Aziz planned continued laser treatment to incrementally smooth the skin. Dr. Aziz concluded by saying, “Whereas the course of treatment has been prolonged and tedious, I feel the end results certainly have justified the rather intolerable situation she has endured with severe scarring following the chemical injury. Furthermore, in my opinion, I feel additional treatments will benefit her overall end result particularly since maximum medical improvement has not yet been achieved.”
During this time, Sally was receiving temporary total disability compensation. In October 2004, Sally was examined on ITE’s behalf by Dr. Homer Williams. In his report, Dr. Williams said, “The claimant does exhibit severe scarring as a result of her physical condition. The condition is expected to be permanent.”
Dr. Williams said that Dr. Aziz’s treatment had been appropriate. He also said, “Maximum medical improvement is believed to have been reached.”
This last part was important because it generated a motion from ITE to stop Sally’s temporary total disability compensation based on maximum medical improvement (MMI). Based on the Williams report, the hearing officer found that MMI had occurred and she terminated temporary total disability compensation.
In 2005, further laser treatment was approved. Sally sought to reinstate temporary total compensation, but the district hearing officer denied her claim, stating: “The claimant has not proved…that the allowed conditions in the claim have rendered her, once again, temporarily and totally disabled.” The hearing officer once again cited Dr. Williams that MMI had been reached.
In September 2005, Dr. Aziz responded, saying, “I am a little disturbed at general feelings about Sally’s overall clinical situation. Over the last several years, we have been trying diligently to improve her overall situation.”
Most importantly, Dr. Aziz said, “I really feel maximum medical improvement has not been reached because she still has potential to be improved.”
Nevertheless, a day after receiving that letter, a staff hearing officer affirmed the district hearing officer: “The injured worker was found to have reached maximum medical improvement.” The staff hearing officer found no new or changed circumstances that would render Sally temporarily and totally disabled.
After that, Sally filed a complaint in the court of appeals alleging the Industrial Commission abused its discretion in refusing to reinstate temporary total disability compensation. The court of appeals disagreed, and then Sally’s case came before us – the Supreme Court of Ohio.
The key to all of this is that when a claimant reaches maximum medical improvement, payment of temporary total compensation is barred. But the Commission retains jurisdiction over the case, and can reinstate temporary total disability after an MMI determination if new and changed circumstances warrant.
Over the years, various workers’ compensation cases have addressed the MMI issue. A 1991 case held that the temporary “flare-up” of an allowed condition was a new and changed circumstance supporting renewed compensation. This approach derived from recognition that “claimants who had previously been declared as MMI could experience temporary exacerbation of their condition that justified further treatment or even temporary total disability compensation as the claimant struggled to recover his or her previous level of well-being.”
A 1998 case found that surgery could be a new and changed circumstance. But we did not say that surgery was automatically a new and changed circumstance.
That was followed in 2004 by a case called Josephson that said, “Unless there is a worsening of an allowed condition, a mere prospect of improvement beyond the level previously declared MMI will not justify a new recognition of temporary total disability.”
There is no evidence that Sally’s May 2005 laser treatment was precipitated by a worsening of her condition. To the contrary, Dr. Aziz explained that treatment would consist of an ongoing series of these procedures. But the record does indicate that Sally’s condition was temporarily worsened after the May 2005 treatment took place.
In Josephson we sought to establish a prerequisite that would help preserve the integrity of an MMI declaration. By requiring that a claimant’s condition be exacerbated before temporary total disability compensation may resume, the Josephson standard reduced the incentive for claimants to return to the Industrial Commission every time their doctors suggest that new or renewed treatment could generate improvement.
But Sally’s case posed a question that we didn’t answer in Josephson: May benefits resume if the exacerbation follows, rather than precedes, treatment? By a seven-to-zero vote, we answered yes. We therefore ordered the Industrial Commission to determine whether Sally is entitled to any temporary total disability compensation due to postsurgical exacerbation.
And hopefully, as Dr. Aziz said, the ongoing treatments will help Sally toward ever-continued improvement.EDITOR'S NOTE: The case referred to is State ex rel. Moore v. Internatl. Truck & Engine, 116 Ohio St.3d 272, 2007-Ohio-6055. Case No. 2006-2396. Decided Nov. 20, 2007. Opinion Per Curiam.