COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68488 ROBERT L. KOUBEK : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : : OPINION LTV STEEL COMPANY : : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 22, 1995 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, Case No. CV-257117. JUDGMENT: REVERSED AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Kirk D. Weber, Esq. Russo, Roth & Co. 1293 Randall Park Mall North Randall, Ohio 44128 For Bureau of Workers' Betty D. Montgomery Compensation Attorney General of Ohio 30 East Broad Street State Office Tower 15th Floor Columbus, Ohio 43266 For Defendant-appellant: R. Patrick Baughman, Esq. Sandra Becher Sommers, Esq. Baughman & Associates 55 Public Square, Suite 2215 Cleveland, Ohio 44113 SWEENEY, JAMES D., P.J.: Plaintiff-appellant LTV Steel Company ("LTV"), a self-insured employer, appeals from the granting of summary judgment in favor of defendant-appellee-movant Robert L. Koubek ("Koubek") in this workers' compensation action. For the reasons adduced below, we reverse and remand for further proceedings. A review of the record on appeal indicates that Koubek filed an application for benefits for an injury sustained on December 8, 1987. This claim was allowed on June 16, 1988, by the district hearing officer who stated the following in part: ... the claimant sustained an injury in the course of and arising out of employment described as follows: While removing a battery from a dump truck. It is therefore ordered that the claim be allowed for: Low back strain superimposed upon L5-S1 disc herniation and degenerative lumbar disk. The medical bills be paid in accordance with the rules and regulations of the Bureau of Workers' Compensation and the Industrial Commission. That the following compensation be awarded: Temporary Compensation from 12/09/87 through 06/01/88, less any sick and accident benefits paid over same period. Further to be considered upon submission of medical evidence. Claimant had CAT scan in 1986 when claimant had hernia claim which shows a disc herniation at L5-1 and had epidural nerve block at St. Vincent Hospital in August, 1986. - 3 - Compensation awarded based on the medical reports of Dr.(s) Reilly, Saks and Collis, (St. Vincent Charity Hospital). LTV, the employer of Koubek, appealed this original allowance. On October 5, 1988, the Regional Board of Review affirmed the original allowance. LTV did not further appeal this original allowance. On December 22, 1988, LTV received a C-161 form from Koubek's treating physician (Dr. Reilly) requesting approval for a percutaneous discectomy for Koubek and further setting forth that claimant was being treated for a "herniated lumbar disc." This operation was approved by LTV and the procedure was done on the claimant. Thereafter, LTV filed a motion to determine the extent of Koubek's disability. On August 15, 1989, the district hearing officer stated the following in his order relative to the LTV motion: The District Hearing Officer determines that claimant remains temporary and totally disabled due to the 12/8/87 injury as supported by Dr. Reilly's 7/27/89 note to the file and the lack of evidence showing low back-disc treatment immediately prior to the 12/8/87 event. The District Hearing Officer notes that the C- 161 request for discectomy was approved by the employer on 12/22/88 and such is affirmed by the District Hearing Officer. LTV appealed to the Board of Review, which, on May 22, 1990, modified the August 15, 1989 order stating in part, The Board denies temporary total disability compensation beyond 1-1-90 as claimant was - 4 - found to be employed on a sustained renumerative basis per claimant's testimony. Affirmed in all other respects. LTV appealed to the Industrial Commission, which appeal was denied, thereby affirming the May 22, 1990 Board of Review order. LTV did not further appeal this order. On April 19, 1991, Koubek filed a C-86 administrative motion requesting payment of temporary total disability from March 4 to June 1, 1991, and physical therapy for a period of ten weeks. The hearing officer's order of December 23, 1991, relative to the C-86 motion, stated the following findings in recognizing an additional claim and amending the original allowance: Although convoluted procedurally, the District Hearing Officer interprets the prior approval of the 2-20-89 "percutaneous discectomy" (lumbar) and payment of disability compensation by the employer arising from the procedure, and its ratification by District Hearing Officer (8-15-89), Regional Board (5-22-90), and SHO (11-9-90), to be the equivalent of a recognition of this claim for an "aggravation of pre-existing L5/S1 herniated disc"; the District Hearing Officer formally amends claim to additionally recognize this condition: the District Hearing Officer authorizes the physical therapy treatment requested (Dr. Corn- Two treatments/week for ten weeks); A narrative progress report is to follow this course of treatment. * * * Above findings are based upon the reports of Doctors Corn & Reilly. (Emphasis added.) Upon timely appeal by LTV, the Board of Review and the Industrial Commission affirmed the hearing officer's order. LTV filed a notice of appeal with the trial court on August 24, 1993. - 5 - On October 15, 1993, Koubek filed a petition pursuant to R.C. 4123.519 alleging the right to participate in the Workers' Compensation Fund for the additional condition of "aggravation of pre-existing L5/S1 herniated disc." Koubek filed his motion for summary judgment on June 18, 1994. Thereafter, LTV filed a brief in opposition to summary judgment. Without opinion, the trial court on January 4, 1995, granted the motion for summary judgment. This timely appeal from that final order followed, presenting one assignment of error. I THE TRIAL COURT ERRED IN GRANTING APPELLEE'S MOTION FOR SUMMARY JUDGMENT. Civ.R. 56(C) provides in pertinent part: Summary judgment shall be rendered forthwith if the pleading, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. *** A summary judgment shall not be rendered unless it appears from such evidence or stipulation and only therefrom, that reasonable minds can come to but one conclusion and the conclusion is adverse to the party against whom the motion for summary judgment is made, such party being entitled to have the evidence or stipulation construed most strongly in his favor. In the present case, the primary issue is whether LTV, in approving the discectomy procedure requested in the 1988 form C- 161 to treat the herniated lumbar disc condition and paying the - 6 - medical expenses following the procedure, recognized the additional condition of aggravation of pre-existing L5/S1 herniated disc. This much is clear and uncontested from the record: (1) Koubek was diagnosed in 1986 with a herniated disc at L5-S1, and was treated with an epidural nerve block at that site in August, 1986; (2) there was a lack of evidence showing low back-disc treatment immediately prior to the December 7, 1987 injury experienced at LTV; (3) Koubek injured his low back at L5-S1 on December 7, 1987, while employed by LTV; (4) the claim for this 1987 injury was initially allowed by the self-insured employer for low back strain superimposed upon L5-S1 disc herniation and degenerative lumbar disc; (5) LTV allowed in January of 1989, a discectomy at L5-S1 for the condition of Koubek's herniated lumbar disk; (6) LTV voluntarily paid for the medical services incurred by Koubek in the discectomy surgical procedure. Reasonable minds can only conclude, based on these uncontested facts, and the affidavits attached to the brief in opposition to the motion for summary judgment that there is a genuine issue of material fact whether the December 7, 1987 injury aggravated the pre-existing herniated disk condition afflicting Koubek and whether LTV authorized the discectomy procedure based on the aggravation of the condition or the claim as allowed for the injury sustained on December 7, 1987. Acordingly, the trial court erred in granting the plaintiff-appellee's motion for summary judgment. - 7 - Assignment affirmed. Judgment reversed and case remanded for further proceedings. - 8 - This cause is reversed and remanded for further proceedings. It is, therefore, considered that said appellant(s) recover of said appellee(s) its costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. JOHN V. CORRIGAN*, J., CONCURS; and SARA J. HARPER, J., CONCURS, WITH CONCURRING OPINION ATTACHED. (*)John V. Corrigan, Retired Judge of the Eighth District Court of Appeals, Sitting by Assignment. JAMES D. SWEENEY PRESIDING JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68488 ROBERT L. KOUBEK : : Plaintiff-appellee : : CONCURRING OPINION -vs- : : LTV STEEL COMPANY : : Defendant-appellant : : DATE: SARA J. HARPER, J., COCURRING: I agree with the majority's conclusion that a genuine issue of material fact remains in this case as to LTV's intent with regard to recognition of Koubek's additional condition of "aggravated herniated disc" when it approved of the surgical procedure for "low back strain ***." However, I write separately to further discuss the issue presented in this case, specifically whether LTV certified an additional condition of aggravation of pre-existing L5/S1 herniated disc when it approved Koubek's form C-161. Self-insured employers and state-fund employers, i.e., employers who contribute to the State Insurance Fund ("the fund") for the purpose of establishing coverage for employees injured at work, process and adjudicate workers' compensation claims differently. State-fund employers make premium payments to the -2- fund whereas self-insured employers are the initial processing agents of their employees's claims. The commission only becomes involved in self-insured cases when the employer denies a claim and the employee appeals the denial. See, Wargetz v. Villa Sancta Anna Home for the Aged (1984), 11 Ohio St.3d 15, 17. A self-insured employer, therefore, pays compensation directly to an injured employee and adjudicates the employee's claim for benefits absent a dispute. See, State ex rel. Baker Material Handling Corp. v. Indus. Comm. (1994), 69 Ohio St.3d 202, 205, citing Young, Workmen's Compensation Law of Ohio (2 Ed.1971) 239, Section 13.11. The Supreme Court of Ohio, in State ex rel. Saunders v. Metal Container Corp. (1990), 52 Ohio St.3d 85, held that the commission does not have continuing jurisdiction to correct a prior mistake "regarding the medical condition allowed in a claim to the extent of changing the nature of the medical condition as certified by the self-insurer on a 'C-50 Application for payment of Compensation and Medical benefits.'" Baker Material, 205. The appellate court in that case explained as follows: "[When] *** the employer is self-insured[,] [t]he initial determination of allowed conditions necessarily is made by the employer in such a situation. The district hearing officer cannot modify that finding over the objection of the claimant, upon the assumption that the self-insured employer erroneously certified the condition. The district hearing officer had no jurisdiction under R.C. 4123.52, or otherwise, to modify the original finding of the employer as to the allowed condition over the objection of the claimant. The employer who made the determination and certified the claim cannot now complain, as it attempted to do before the district hearing officer in March 1986 that it, the employer, had made an erroneous determination and certification as to the allowed condition." -3- Id., 206, quoting State ex rel. Saunders v. Metal Container Corp. (Nov. 29, 1988), Franklin App. No. 87AP-509, unreported, 6. A C-174 form, entitled "SELF-INSURED SEMI-ANNUAL REPORT OF CLAIM PAYMENTS," is directed to the Ohio Bureau of Workers' Compensation. The form seeks certification from self-insured employers as to the type and amount of compensation and medical expenses which are paid on a claim over the preceding six-month period and the type of allowed claim. By applying the Saunders reasoning to C-174 forms, at least two other appellate courts found that a self-insured employer conclusively amends a claim when it certifies an additional condition as "allowed" on this type of form. See, Garrett v. Jeep Corp. (1991), 77 Ohio App.3d 402; State ex rel. Jones v. Indus. Comm. (Oct. 20, 1983), Franklin App. No. 83AP-256, unreported; see, also, Baker Material. In Baker Material, the employer, Baker, originally allowed a claim for "lumbosacral sprain." On at least three of the C-174 forms relating to the employee at issue, Baker certified the claim as for "herniated disc." Baker argued that the C-174 should be limited to its purpose, i.e., informing the bureau as to the type and amount of compensation and expenses, and not to provide a record of an employee's conditions. Baker relied on the Supreme Court of Ohio's decision in State ex rel. Riggs v. Oak Lake Farms, Inc. (1986), 26 Ohio St.3d 173, in support of its argument. In Riggs, the claimant's treating physician submitted a medical report which included his opinion that the claimant suffered from permanent and total disability. The commission -4- contested the report as being unreliable because the physician or someone in his employ submitted C-19 billing forms to the bureau, prior to and after the completion of the report, which listed the claimant's disability as "temporary total" rather than "permanent total." The supreme court concluded that the C-19 form is a "fee bill" which allows a treating physician to be reimbursed for services rendered to a claimant. The form is not meant to supply a medical record of the claimant's condition or history, or the level of disability. Id., 206. The Baker Material court found that the reasoning it applied in Riggs was not applicable to the C-174 form, specifically, that this form is not limited to the extent of the C-19 form. The court stated in this regard: [I]n the case of the C-19 fee bill, the physician's office often simply reports "the claimant's legal status (in terms of disability) according to the determination of the bureau." Id. [Riggs, 176.] This is in fact the accurate way for the physician to fill out the C-19 form because the claimant's legal status is the "last legally recognized disability." Id. at 176, 26 OBR at 151, 497 N.E.2d at 722-723. The self-insured employer, on the other hand, is the initial processor of claims. As such, it does not simply report the legal status of the claim "according to the determination of the bureau," but itself initially determines such status. In fact, in this case it was Baker, not the commission, which had determined claimant's "last legally recognized" medical condition when, by a letter dated March 14, 1983, it recognized the claim for "lumbo sacral sprain." Clearly, when a self-insured employer certifies an additional condition as allowed in the claim, it is not acting in accordance with any perception (or actual limitation) that it is bound to report the claimant's last legally recognized status. If this were its perception, it certainly would not certify an additional allowance. (Emphasis added and sic.] -5- Baker also argues that its reporting of "herniated disc" was a clerical error, and that if the commission has authority to change or modify its prior orders, then self-insured employers, who are also "obligated to initially adjudicate claims, *** have the inherent authority to correct clerical errors." The continuing jurisdiction of the commission to modify or change former findings or orders emanates from R.C. 4123.52 and its predecessor, G.C. 1465-86. In balancing the commission's continuing jurisdiction under R.C. 4123.52 and the need for finality of a determination, this court has construed R.C. 4123.52 as authorizing such a modification upon a showing of (1) new and changed conditions subsequent to the initial order, (2) fraud, or (3) clerical error. See State ex rel. Gordon v. Indus. Comm. (1992), 63 Ohio St.3d 469, 471, 588 N.E.2d 852, 854; State ex rel. Keith v. Indus. Comm. (1991), 62 Ohio St.3d 139, 141, 580 N.E.2d 433, 436. *** *** We hold that a self-insured employer who, subsequent to the initial allowance of a claim, certifies a medical condition as allowed on a "Self Insured Semi-Annual Report of Claim Payments" (form C-174) has conclusively granted that additional condition as part of the claim. *** Baker Material, 206-208. The Baker Material court, however, limited its decision to the C-174. The court stated: We note that the case sub judice presents only the issue of explicit recognition of an additional allowance by a self-insured employer who reports such condition as allowed on a C-174 form. This case does not involve the separate issue of whether, in the absence of reporting the condition as allowed, the self-insured employer implicitly recognizes a claim or condition as compensable by payment of medical expenses and/or compensation. See Garrett, supra, at 412-414, 602 N.E.2d at 698-699. (Emphasis added.) Baker Material, 208, fn. 1. In Garrett, Garrett's employer certified a claim for an injury to his left knee. The commission thereafter amended the claim for -6- the additional condition of "contusion right knee and chondromalacia left patella." The district hearing officer subsequently granted an additional allowance for "substantial aggravation of pre-existing bilateral patellofemoral arthritis." The regional board of review affirmed the hearing officer's order; the commission refused further appeal; the employer filed a notice of appeal in the court of common pleas; Garrett filed a complaint seeking to participate in the workers' compensation fund for "substantial aggravation of pre-existing bilateral patellofemoral arthritis." Id, 404-405. Garrett filed a motion for summary judgment in the trial court with regard to his right to participate in the fund. He partially argued that his employer "explicitly" allowed the requested additional condition prior to the district hearing officer's order, and such an allowance is conclusive. Garrett attached documents to his motion which revealed that approximately over a two-year period, his employer authorized and paid for three surgeries, various medical treatments and bills, and disability payments to him. The documents included: (1) forms for disability compensation which indicated a diagnosis of "left knee chondromalacia patella/bilateral OA in knees"; (2) forms which authorized surgery and contained diagnoses of "right knee internal derangement"; "osteoarthritis, left knee, chondromalacia patella" and "internal derangement, left knee with severe patellofemoral osteoarthritis"; and (3) forms which authorized payment for treatment and indicated diagnoses of "patellofemoral -7- osteoarthritis, left knee" and "internal derangement, right knee with recurrent effusion; internal derangement, left knee with severe patellofemoral osteoarthritis." The employer responded to Garrett's motion and filed its own motion for summary judgment. The trial court denied both parties' motions based upon its conclusion that reasonable minds could conclude either that the employer allowed the additional claims or promptly objected to them. Id., 405-407. On appeal, Garrett argued that his self-insured employer clearly recognized the condition of "substantial aggravation of pre-existing bilateral patellofemoral arthritis" when it paid medical bills and compensation and authorized surgeries based on that diagnosis, and submitted commission forms which listed the diagnosis as an allowed condition. Id., 410. The Court of Appeals of Lucas County framed the issue before it as: "whether a self- insured employer who, subsequent to the initial certification of a workers' compensation claim, authorizes surgeries and pays medical and disability benefits based on a condition not originally certified in the claim, which condition the employer has reported as 'allowed' on C-174 forms, has made a conclusive determination that it has granted the allowance of that condition into the claim." (Emphasis added.) Id., 411. The Garrett court relied in part on the quoted portion of Saunders, Slip Op. 87AP-509, and a review of the legislative history of R.C. 4123.84 in concluding that R.C. 4123.84 permits a -8- finding that a self-insured employer recognizes a claim as compensable by payment of compensation or benefits. Id., 414. As is relevant to the within case, a review of both Baker Material and Garrett reveals that an employer must pay medical expenses and then include those expenses on a C-174 submitted to the commission in order to demonstrate an additional condition. See, also, State ex rel. Morrow v. Indus. Comm. (1994), 71 Ohio St.3d 236, 239. Whether a C-161 request for surgery in and of itself demonstrates this allowance of an additional condition, the assumption made by the district hearing officer in the January 1992 order, is not supported by any of these decisions. Reasonable minds can come to more than one conclusion when construing the evidence in favor of LTV that LTV "explicitly" allowed an additional condition of "aggravated herniated lumbar disc." Accordingly, I concur with the majority's conclusion that .