[Cite as State ex rel. Sears Roebuck & Co. v. Indus. Comm., 131 Ohio St.3d 45, 2011-Ohio-
6525.]




 THE STATE EX REL. SEARS ROEBUCK & COMPANY, APPELLEE, v. INDUSTRIAL
                   COMMISSION OF OHIO ET AL., APPELLANTS.
           [Cite as State ex rel. Sears Roebuck & Co. v. Indus. Comm.,
                       131 Ohio St.3d 45, 2011-Ohio-6525.]
Workers’ compensation—Industrial Commission abused its discretion by
        ordering employer to pay a medical bill submitted by a claimant when the
        claimant did not substantiate that the purpose of the office visit was
        related to his injury—Court of appeals judgment affirmed.
(No. 2010-0955—Submitted September 6, 2011—Decided December 20, 2011.)
              APPEAL from the Court of Appeals for Franklin County,
                          No. 09AP-180, 2010-Ohio-1818.
                                __________________
        Per Curiam.
        {¶ 1} We are asked to determine whether appellant Industrial
Commission of Ohio abused its discretion by ordering self-insured appellee, Sears
Roebuck & Company, to pay a medical bill submitted by appellant Timothy
Mathews for a 1998 doctor’s visit. Upon review, we find that it did.
        {¶ 2} Mathews was injured in an industrial accident on October 13,
1987, and a workers’ compensation claim was allowed by Sears for torn muscles
in the left leg, tears of the buttocks and bladder, and internal injuries. For the next
five years, Mathews had extensive medical treatment.              By 1993, however,
treatment had diminished considerably, with approximately ten visits total over
the next four years. The last injury-related bill submitted to either Sears or its
third-party administrator was paid on March 26, 1997.
        {¶ 3} In March 1999, Sears’s third-party administrator, Frank Gates
Service Company, received a letter from Mathews’s attorney:
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       {¶ 4} “I am enclosing a copy of a billing Timothy A. Mathews received
from Dr. Urbanosky of Greater Ohio Orthopedic Surgeons, Inc. relative to an
examination of September 22, 1998. This was billed to your office for payment
and was rejected on the basis that the claim had been inactive. As your files
should reflect, Mr. Mathews has been under the care of one or more physicians at
Greater Ohio Orthopedic Surgeons, Inc. His previous physician recently died and
Dr. Urbanosky has taken over Mr. Mathews’ care.
       {¶ 5} “Is it really necessary to go further with regard to this billing to the
extent that the claim needs to be activated and perhaps the hearing held? I trust
that your good judgment will see that this bill is promptly paid and that Mr.
Mathews be advised accordingly.
       {¶ 6} “If your client is unwilling to pay this bill, please advise me
immediately in order that we may take the appropriate action relative to this
matter.” (Emphasis added.)
       {¶ 7} The invoice that accompanied the letter listed an amount due of
$50 for an unspecified office exam and did not indicate what medical conditions
or complaints prompted the visit. These omissions generated a follow-up letter
from Frank Gates:
       {¶ 8} “We are in receipt of your letter dated March 12, 1999 requesting
the employer reconsider their position on the payment of the outstanding bill from
Greater Ohio Orthopedic Surgeons for service date September 22, 1998.
       {¶ 9} “We understand your concern regarding this one payment;
however, Mr. Mathews has not received any medical treatment from this provider
since February 6, 1996. The employer agrees to consider accepting payment for
this date of service, but we request you provide us with the office notes to prove
the relationship and diagnosis to his October 13, 1987 claim.”




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       {¶ 10} All agree that Mathews’s counsel never responded to this letter.
Counsel never forwarded the requested information or requested a commission
hearing.
       {¶ 11} In early 2008, Mathews asked Sears to authorize further treatment.
Sears’s new third-party administrator, Helmsman Management Services, Inc.,
denied the request, relying on former R.C. 4123.52. Am.Sub.H.B. No. 238, 141
Ohio Laws, Part II, 2761, 2837. Under that statute, claim inactivity in excess of
ten years permanently closed a workers’ compensation claim. Because the last
payment of expenses or compensation in Mathews’s claim was in 1997,
Helmsman informed Mathews that his workers’ compensation claim was no
longer open.
       {¶ 12} In an effort to toll the statute, Mathews’s new counsel revived the
issue of the September 1998 doctor’s visit and requested a commission hearing on
the payment of that bill. Accompanying the motion were the doctor’s notes from
that appointment:
       {¶ 13} “CURRENT CONDITION: Timothy * * * was involved in a
severe crush-type injury to his pelvis and thighs back in October of 1987. * * *
He did not require any pelvis or back surgery at the time and overall seems to
have recovered well. * * * He states over the last two days or so his left leg has
been feeling ‘heavy’ with associated tingling into the dorsum of his left foot. He
states it feels as if his leg falls asleep. However, the tingling seems to be constant.
He has minimal associated back pain or other radicular-type pains at this time.
       {¶ 14} “* * *
       {¶ 15} “IMPRESSION: Mild L5 radiculopathy on the left.
       {¶ 16} “PLAN: He has been encouraged to take his Motrin on a regular
basis * * *. In addition, he has been encouraged to maintain his regular activities
within the limits of any pain which presently is minimal. I have encouraged
aerobic-type activities, as well as abdominal exercises and gradual back muscle



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strengthening-type exercises. I have encouraged him to minimize weight lifting-
type activities which he wishes to begin at least until this numbness is resolved.
He has been warned that being in his 30’s he is, even without his prior injuries, at
risk of having a disk herniation. Should this manifest itself with more pain or
frank numbness or limping/weakness, I have encouraged him to return for further
evaluation.”
       {¶ 17} A commission staff hearing officer ordered Sears to pay the
outstanding bill:
       {¶ 18} “By 04/21/1999 letter * * * the employer’s third part[y]
administrator, acknowledge[d] receipt of the [March 12, 1999] letter [from
claimant’s counsel] and stated that the payment would be considered upon
submission of office notes. This letter does not constitute the denial of payment.
       {¶ 19} “The Staff Hearing Officer has considered employer’s four
defenses to the payment of this bill, and finds none of them well taken.
       {¶ 20} “First, the medical service is reasonably related to the allowed
industrial injury. Claimant suffered severe internal injuries in the vicinity of the
lower back. A referral to determine if a lower back injury was a part of those
severe injuries was reasonable and indicated. Although no lower back injury is
allowed in the claim, in the context of the location and severity of the claimant’s
other injuries, and his complaints at the time, this referral is a reasonable expense
of the allowed industrial injury. This is demonstrated by the office notes of the
medical service, notwithstanding the conclusion that the claimant did not have a
medical condition which is a part of the allowed conditions in the claim.”
       {¶ 21} Sears filed a complaint in mandamus in the Court of Appeals for
Franklin County, alleging that the commission had abused its discretion in
ordering the bill to be paid because the visit related to a low-back condition that
was not allowed in Mathews’s claim. The court agreed and issued a writ of




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mandamus that vacated the decision and directed the commission to issue a new
order denying payment of the bill.
       {¶ 22} This cause is now before this court on appeals as of right by
Mathews and the commission.
       {¶ 23} Mathews seeks payment for the 1998 office visit generated by a
low-back condition that has not been allowed in his claim. Typically, payment is
properly denied when a condition has not been allowed. Appellants, however,
insist that two cases in which treatment was authorized for a condition that had
not been formally allowed in the claim support their position. Upon review, we
find that those cases are distinguishable from the one at bar.
       {¶ 24} In State ex rel. Miller v. Indus. Comm. (1994), 71 Ohio St.3d 229,
643 N.E.2d 113, we approved a weight-loss program in a claim that had not been
formally allowed for obesity.          There, the claimant’s physician sought
authorization for a weight-loss program, based on his belief that claimant’s
obesity was compromising her recovery from her allowed back condition. The
commission did not dispute the doctor’s opinion but felt that because obesity was
not an allowed condition in the claim, treatment could not be authorized.
       {¶ 25} We disagreed. We stressed, among other things, that obesity was
unique from an allowance standpoint because it was a generalized condition that
could not be restricted to a specific body part. Id. at 233. This, in turn, made it
less amenable to the formal allowance mechanics of R.C. 4123.84, a characteristic
that Mathews’s lumbar radiculopathy does not share.
       {¶ 26} Appellants also cite State ex rel. Jackson Tube Servs., Inc. v. Indus.
Comm., 99 Ohio St.3d 1, 2003-Ohio-2259, 788 N.E.2d 625. In Jackson Tube, the
claimant’s workers’ compensation claim had been allowed for a torn rotator cuff.
Continuing shoulder problems, however, as well as a failure to have a shoulder
arthroscopy performed, prompted his doctor to express concern that “substantial
pathology [was] still being missed,” most likely a secondary tear. Id. at ¶ 14. For



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these reasons, he sought permission both to perform exploratory surgery to
determine the cause of claimant’s persistent symptoms and to fix the problem he
found.
         {¶ 27} The employer objected to the procedure, arguing that the shoulder
conditions identified by the doctor as the potential source of claimant’s continuing
problems had not been allowed in the claim. The commission allowed the surgery
nonetheless, and we upheld that decision. We acknowledged that the issue was a
difficult one, with compelling arguments being made by both sides:
         {¶ 28} “On one hand, claimant could not move for additional allowance
beforehand, since without the surgery, the problematic conditions could not be
identified.   On the other hand, self-insured JTS questions its recourse when
ordered to pay for surgery that ultimately reveals any conditions to be
nonindustrial.   It also fears that payment could be interpreted as an implicit
allowance of all of the conditions in the postoperative diagnosis.” Id. at ¶ 22.
         {¶ 29} Addressing the latter concern first, we stressed that an employee
could not “circumvent additional allowance by simply asserting a relationship to
the original injury. The problem in this case, however, is that because any
conditions are internal, claimant could not know what conditions to seek
additional allowance for without first getting the diagnosis that only surgery could
provide.” Id. at ¶ 25.
         {¶ 30} We were additionally persuaded by the physician’s consistent
assertion that whatever condition was the source of the claimant’s shoulder
complaints, that condition was related to the industrial injury. We also noted that
claimant’s doctor had indicated that irrespective of any other conditions that may
be contributing to claimant’s problems, the allowed condition of torn rotator cuff
had to be surgically repaired.       To deny the surgery simply because more
conditions could be found would conflict with our earlier decision in State ex rel.
Griffith v. Indus. Comm. (1999), 87 Ohio St.3d 154, 718 N.E.2d 423. We closed,




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however, by clarifying that if other shoulder conditions were indeed found,
further treatment or compensation could not be authorized unless the conditions
were then additionally allowed in the claim.
       {¶ 31} Unlike Mathews, the claimant in Jackson Tube was not being
treated for a condition arising in a part of the body that was not previously alleged
to have been injured. Not only had the latter claimant consistently alleged a
shoulder condition, his workers’ compensation claim included one.              This,
coupled with medical evidence discussing the probability of other related but
undiagnosed shoulder conditions and a history of unresolved shoulder complaints
since the date of injury, greatly enhanced the likelihood that any newly discovered
shoulder conditions were connected to the industrial injury.           Under those
circumstances, surgical authorization was reasonable—despite the lack of formal
allowance beforehand—in order to diagnose with specificity what those other
related conditions were.
       {¶ 32} In contrast, Mathews’s 1998 office visit was related to a part of the
body that he never before alleged was injured. Unlike in Jackson Tube, there is
no evidence properly before us that establishes a history of low-back symptoms.
According to Dr. Urbanosky, Mathews’s back symptoms began just two days
before his office visit. We find it significant that in the 11 years between his
industrial injury and the disputed office visit, there is no record of any low-back
complaints.
       {¶ 33} More importantly, there is no evidence establishing, or even
suggesting, a potential connection between his 1987 injury and his 1998 back
symptoms.     To the contrary, Dr. Urbanosky indicated that Mathews had
“recovered well” from his industrial injury. She also stated that irrespective of
any other factor, Mathews’s age alone put him at risk for the type of disc
problems that could cause radiculopathy.




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       {¶ 34} Appellants assert that a judgment in Sears’s favor rewards it for
abusing its responsibilities as a self-insured employer. They accuse Sears of
failing to affirmatively act on the disputed bill when it was first presented for
payment in 1999. This argument, however, lacks merit.         Sears’s third-party
administrator asked Mathews’s former counsel to provide information to
substantiate the purpose of the office visit, but counsel never responded. Counsel
also never requested a commission hearing, which could have conclusively
resolved the matter. Accordingly, we find no merit to appellants’ claim that Sears
acted inappropriately.
       {¶ 35} The judgment of the court of appeals is affirmed.
                                                              Judgment affirmed.
       O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL,
LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.
                             __________________
       Reminger Co., L.P.A., and Kevin R. Sanislo, for appellee.
       Butler, Cincione & DiCuccio and Matthew P. Cincione, for appellant
Timothy Mathews.
       Michael DeWine, Attorney General, and Colleen C. Erdman, Assistant
Attorney General, for appellant Industrial Commission.
                           ______________________




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