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State ex rel Rouweyha v. Industrial Commission of Ohio1/30/2002
Workers' compensation - Surgeon's voluntary limitation of income - Industrial Commission did not abuse its discretion in denying application for wage-loss compensation, when.
Submitted October 30, 2001
Appellant-claimant, Marwan R. Rouweyha, is an orthopedic surgeon. In the 1970s, claimant injured his right arm in an incident unrelated to work. Over the years, claimant's continued use of that extremity in his surgical practice apparently caused carpal tunnel syndrome. In 1992, appellee Industrial Commission of Ohio allowed a workers' compensation claim for that condition. Claimant received temporary total disability compensation from that point until May 5, 1998, when it was terminated due to maximum medical improvement.
Following his 1992 surgery, claimant tried to keep his practice going by doing non-surgical consultations. Unable to meet his expenses, claimant closed the practice in 1995.
Claimant's activities over the next three years are not known. Sometime in 1998, claimant was approached by the owners of a medical practice that specialized in hair transplant surgery, Physicians Hair Transplant Group ("PHTG"). PHTG was interested in buying claimant's medical building. Claimant, in turn, apparently inquired about the qualifications needed to become a hair transplant surgeon. Ultimately, the two parties entered an agreement. The first portion-signed by claimant and two PHTG officers-read:
"Physicians Hair Transplant Group will train Doctor Marwan R. Rouweyha to become a hair transplant surgeon. Once Doctor Rouweyha completes his training and if he elects to make hair transplantation his new profession, he will perform hair transplant procedures for Physicians Hair Transplant Group for a period of one to three years free of any monetary compensation."
Below their signatures-undated and in different type-is this paragraph:
"The present fee to train an individual to become a specialist in the field of hair transplant surgery is $60,000 (U.S.)[.] In order not to pay these training fees to P.H.T.G.[,] Dr. M.R. Rouweyha will be working for a period of two (2) years without compensation in exchange for the training fee of $60,000."
Claimant did not sign that portion of the agreement.
On October 7, 1998, claimant moved the commission for wage-loss compensation as of November 1, 1998, the day he started working allegedly without pay for PHTG. Claimant argued that the waiver of PHTG's training fee should be counted as income over the two years that he was supposedly working without pay. Claimant, therefore, sought the difference between his perceived $30,000 post-injury yearly income and the approximately $120,000 he was making before his carpal tunnel syndrome forced him from surgical practice. Claimant accompanied his motion with the medical report of Dr. Earl Z. Browne, Jr., who, five years earlier, opined that claimant was not yet ready to resume surgery.
A district hearing officer allowed the application. A staff hearing officer reversed, after finding that "claimant failed to make a good faith effort to find employment within his physical restrictions and thus has failed to establish his entitlement to wage loss compensation.
"The claimant has been a practicing physician for many years. During those years this Staff Hearing Officer has read many reports that he has written regarding Permanent Total Disability, Permanent Partial Disability, extent of disability, etc. Surely with his wealth of experience he could have earned more than a mere $30,000.00 per year serving as a company doctor or just doing specialist examinations. It would appear that this claimant has v
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