Permanent Total Claimant’s Deposition Request Denied

Permanent Total Claimant’s Deposition Request Denied

Posted: June, 2002

State ex rel. Cox v. Greyhound Food Mgt. (5/29/02), 95 Ohio St.3d 353, 2002-Ohio-2335.

Issue: Did “substantial disparity” between doctors’ reports exist, allowing permanent total claimant to depose the Commission doctor where, even though the disability percentages assigned by the doctors substantially differed, both doctors agreed that claimant could work and claimant had opportunity to contest alleged flaws in the report by presentation at hearing?

Background: Cox applied for permanent total. Dr. C’s report concluded that Cox could not lift over thirty pounds, could not return to his former position of employment, and indicated he had a 65% impairment.

Dr. W found that Cox could return to his former position of employment, could not engage in repetitive bending, and assigned a 5% impairment.

Cox filed a motion to depose Dr. W citing a substantial disparity between the two reports.

O.A.C. 4121-3-09 requires the existence of a substantial disparity before a request for depositions or interrogatories will be granted.

The Commission denied the motion finding no substantial disparity.

The Commission said the doctors had “a difference of opinion which can most fairly be resolved through the hearing process.”

Cox filed a mandamus which the Court of Appeals denied.

Decision: Supreme Court affirms (7-0).

Court notes that “substantial disparity” is not defined in the context of permanent total. The “substantial disparity” criterion does not recognize the fundamentals of the hearing process. These hearings occur because a disparity in the medical evidence exists. The hearing gives both sides the opportunity to debate the strengths and weaknesses of the reports.

OAC 4121-3-09 also provides that whether the report was relied on to the exclusion of other reports is another factor to be considered in determining whether to allow depositions or interrogatories to that doctor. Court says that the nature of the hearing process dictates that one report will be relied on over another report when doctors differ in their opinions. Court also says that whether the Commission relied on one report exclusively out of others cannot be determined until after the hearing and by then any deposition would be too late. Court also says that a deposition can only correct an irregularity in the physician’s report but not the Commission’s reliance on that report.

Court concludes that the “substantial criteria” and the “exclusive-reliance factor” are not very useful in determining the reasonableness of a deposition request.

O.A.C. 4121-3-09 uses the word “include” in listing the criteria for depositions. Therefore, other factors may be considered.

Court relies on two other criteria: 1) Does a defect exist that can be cured by deposition? and 2) Is the disability hearing an equally reasonable option for resolution?

Court finds that the Commission did not abuse its discretion in denying motion to depose. Court says that differences in impairment percentages is substantial but irrelevant in this case because the issue is whether the injured worker can work. In this case, both doctors sate that the injured worker can work.

Cox also argued that Dr. W report is internally inconsistent in that it imposes a repetitive-bending limitation yet states that Cox can return to his former job. Court says that the commission could disqualify the report if it is so internally inconsistent as to negate its credibility. Because this is a potential problem that the Commission can address at the hearing, it is not an abuse for the Commission to deny the motion for deposition.

Court also says there is no denial of due process in denying the deposition because Cox had the opportunity at the hearing to enumerate any flaws in Dr. W report.

Editor’s Comment: Must a defect exist in the doctor’s report to permit a deposition? The Court added two criteria to O.A.C. 4121-3-09; note that other, as yet unspecified criteria, may exist in other fact situations.

Information courtesy of the Ohio Workers’ Compensation Bulletin. Subscribe to the Ohio Workers’ Compensation Bulletin to keep informed about the Ohio workers’ compensation system.