Gibson v. Barmet Aluminum Corp.8/30/2000
JUDGMENT: Affirmed
Plaintiff-appellant Jeffrey Gibson appeals from the January 5, 2000, Judgment Entry of the Tuscarawas County Court of Common Pleas granting the Motion for Summary Judgment filed by Defendants-appellees the Administrator of the Bureau of Workers' Compensation and the Industrial Commission of Ohio.
STATEMENT OF THE FACTS AND CASE
On February 5, 1990, appellant was injured in the course of and arising out of his employment when he was struck in the back by an aluminum coil. At the time of the accident, appellant was employed by appellee Barmet Aluminum Corporation. After appellant filed a claim with appellee Administrator of the Bureau of Workers' Compensation (BWC), appellant's claim was allowed for lower back strain. In February of 1993, an MRI was taken of appellant's lumbar spine. As memorialized in a radiologic report dated February 8, 1993, Dr. Sanjay Shah found that there was "mild buldging (sic) of the disc of very minimal disc herniation at the level of L3-4" and that there was "very mild buldging (sic) of the disc with obliteration of the ventral thecal sac at the level of L4-5." After examining appellant and reviewing his MRI, Dr. Tetsuo Tatsumi, a neurosurgeon, opined in a report dated March 6, 1993, that there was "slight bulging disc at L3-4". Thereafter, Dr. Emmanel Casiano, appellant's treating physician, in a letter to appellant's counsel dated May 18, 1993, stated that the appellant's disc herniation at L3-L4 and L4-L5 was the result of appellant's February 5, 1990, industrial injury. In May of 1993, appellant filed a form C-85-A Application to Re-Activate Claim with the BWC asking that his earlier claim be reactivated and that he be granted an additional allowance for "disc herniation of L3-L4 and L4-L5." The form was signed by both appellant and Dr. Casiano, his treating physician. Dr. Casiano indicated on the appellant's application that, in his opinion, appellant's present disability was due to his industrial accident. Approximately three months later, Dr. Casiano examined appellant and opined, in a letter to appellant's counsel dated August 31, 1993, that appellant had "complaints and findings comprable (sic) with bulding (sic) disc, L3-L4 and sciatica." In his report, Dr. Casiano relied upon both appellant's MRI and Dr. Tatsumi's report. A hearing before an Industrial Commission (ICO) district hearing officer was held on September 3, 1993, on appellant's application to reactivate his claim. At the hearing, appellant amended his request for an additional allowance to request allowance for "bulging disc L3-4". At appellant's request, appellant's request for an allowance for "disc herniation L3-L4 and L4-L5" was dismissed. In his September 3, 1993, decision, the district hearing officer, in part, disallowed appellant's claim for "bulging disc L3-4." The district hearing officer specifically found that, based upon the reports of Dr. Bartos and Dr. Tatsumi, the condition of "bulging disc L3-4" was not related to appellant's February 5, 1990, injury. Appellant subsequently appealed from the hearing officer's September 3, 1993, decision. Thereafter, in a letter to Dr. Casiano dated December 10, 1993, appellant's counsel requested Dr. Casiano's opinion regarding whether or not appellant "has a bulging disc at L3-L4 which is directly related to the industrial injury of February 5, 1990." Dr. Casiano, pursuant to a letter dated January 4, 1994, stated that he agreed with Dr. Tatsumi that the bulging disc was a direct result of appellant's February 5, 1990, accident. Following a hearing held on January 14, 1994, on appellant's appeal, the Canton Regional Board of Review vacated the district hearing officer's September 3, 1993, order while still d
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