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State ex rel Monroe v. Industrial Commission of Ohio9/29/2005
as merely paraphrased (rather than quoted) in the order as follows:
* * * laimant testified that he retired in July, 2002 due to his knee problems and due to the fact that he felt that it was time to retire. The Staff Hearing Officer notes that there is no contemporaneous medical evidence showing an inability to work at the time claimant chose to retire. * * *
{ } The SHO discredited relator's testimony that he retired due to his knee problems because the SHO found that "there is no contemporaneous medical evidence showing an inability to work at the time claimant chose to retire." Dr. Kravanya's office notes written at or near the time relator retired conflict with the SHO's finding of "no contemporaneous medical evidence."
{ } Dr. Kravanya's June 24, 2004 office note states " ttempting to perform physical activities and finding increased pain and stiffness of left knee[.] Edema and restricted motion of knee again present."
{ } Dr. Kravanya's June 24, 2004 office note is indeed contemporaneous medical evidence of an inability to work at or near the July retirement, particularly when the office note is read with Dr. Kravanya's subsequent C-84 wherein she opines that relator is temporarily and totally disabled beginning June 25, 2002.
{ } Dr. Kravanya's July 29, 2004 office note states:
Left knee continues to cause pain and difficulty in standing and changing positions.
Negative edema today, positive tenderness to palpation and with range of motion testing.
Advised on exercises for strengthening knee joint.
{ } Dr. Kravanya's July 29, 2004 office note is indeed contemporaneous medical evidence of an inability to work at or near the July retirement, particularly when it is read with Dr. Kravanya's subsequent C-84.
{ } Perhaps what the SHO meant to say in his order is that there is no contemporaneous medical opinion of an inability to work. If that is what the SHO meant to say then indeed there is no contemporaneous medical opinion of an inability to return to the former position of employment at or near the time of relator's retirement.
{ } However, because relator did not file his claim for workers' compensation benefits until over one year from the date of his injury, presumably, Dr. Kravanya was not asked for a disability opinion at or near the July retirement. Thus, even if the SHO actually meant to rely on the absence of a contemporaneous medical opinion of disability, that does not discredit Dr. Kravanya's contemporaneous office notes indicating that relator was experiencing difficulty with the left knee at or near the time of his July retirement. In short, the SHO abused his discretion in his analysis of the medical evidence of record.
{ } The SHO's order also strongly suggests that the SHO shifted the burden of proof to relator when he wrote:
* * * At hearing, claimant was unclear as to what periods he worked or may have missed from work between the date of injury and his July retirement. No employment records have been submitted by the employer. * * *
{ } Relator had no burden to produce Sears' employment records regarding his attendance at work. Apparently, the SHO wanted to know how much work relator missed between the April 21, 2002 injury and the July retirement in order to asses whether the left knee condition might have motivated relator's decision to retire. The SHO cannot draw an inference that relator experienced no problems at work with his left knee simply because relator was unclear as to when he missed work in the absence of Sears' employment records.
{ } Here, respondents argue that relat
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