Opinion
No. 35656
Decided April 29, 1959.
Workmen's compensation — Ten-year limitation for modification of award — Not tolled by continued use of heat lamp, when — Heat lamp, self-administered, not payment of benefits awarded — Section 4123.52, Revised Code.
Where an injured employee is furnished an infrared-ray lamp by an employer in a workman's compensation case, chiefly for the purpose of relaxing muscles and relieving pain, continuing use of such heat lamp, self-administered by such employee, after termination of all compensation payments by such employer to such employee, is not such medical treatment as to constitute further "payment * * * of compensation or benefits awarded on account of the injury" so as to toll the running of the ten-year limitation provided in Section 4123.52, Revised Code.
APPEAL from the Court of Appeals for Mahoning County.
On August 12, 1938, appellee herein, Lucille M. Cestone, while working for appellant herein, The Youngstown Sheet Tube Company, a self-insurer under the workman's compensation laws of Ohio, slipped and fell, suffering a fracture of her 11th vertebra.
On August 16, at the instance of appellant, she was hospitalized, placed in a plaster jacket and confined to a hospital until October 4. On December 1, 1938, she returned to work, wearing a brace furnished by appellant's physician. Appellant, recognizing the injury as compensable, furnished medical treatment and paid compensation to the appellee on a temporary total basis until August 1940 under the terms of an award made by the Industrial Commission.
Following a voluntary trip to a Cleveland hospital, appellee, upon the direction of the physician employed by appellant, entered a Youngstown hospital on June 18, 1940, for diagnosis to determine whether she was suffering from a herniated intervertebral disc. She was examined by a neurosurgeon, an orthopedic surgeon and a roentgenologist, receiving a myelogram X-ray examination. That examination failed to disclose anything abnormal in appellee's spine, and a ruptured disc was "ruled out." An earlier examination in April 1939 also resulted in a report indicating "normal recovery" with respect to the 11th vertebra.
Appellant's physician, Dr. Patrick H. Kennedy, stated that he did not personally treat appellee as a patient after June 1940, although appellee stated that she went in for light treatments "sometimes two or three times a month" in 1939, and that he gave her "prescriptions for codeine tablets when the pain was too bad." She claims no personally administered or supervised treatments or prescriptions by Dr. Kennedy after that time. Payments of compensation under the award made by the Industrial Commission were terminated in August 1940. Early in 1941, appellant's physician ordered a heat lamp to be delivered to appellee's home, which she testified she used until the commencement of this action. The time of delivery is not fixed exactly, but following such delivery the bill for the heat lamp was paid by appellant early in May 1941.
The appellee claims also that in July 1944 she was driven to the appellant's dispensary in a company car and there received a heat-lamp treatment from the appellant employer's nurse, although the nurse named by appellee testified that she started in the employ of appellant in 1937, left there in October 1942 to join her husband who was in military service, and did not return to the employ of appellant until November 1945. Appellee remained in the employ of appellant until March 30, 1951, at which time she voluntarily left such employment and in May 1951 was hospitalized and operated on for a ruptured disc by doctors selected and employed by her. Since that time she has been under such medical and surgical treatment of spinal discs on a number of occasions.
Appellee received her last compensation payment from appellant for her 1938 injury in August 1940. On May 12, 1951, she filed with the Industrial Commission an application for adjustment of claim, alleging total disability. The commission denied this application on the ground that it was not filed within ten years after the date of the last payment of compensation and that the commission was therefore without jurisdiction. The appellee thereupon brought an action in this court seeking a writ of mandamus against the Industrial Commission, which case was decided adversely to her in June 1953 and is reported in 159 Ohio St. 554, 113 N.E.2d 6.
On October 27, 1955, appellee again filed an application for further compensation, contending that "she had received medical treatment in July 1944 at the company dispensary and further received infrared lamp treatments under the orders of Dr. P.H. Kennedy, the company physician, on numerous occasions up to the present time."
The Industrial Commission dismissed this second application for the reason that "said application was not filed within ten years of the date of last payment of compensation or medical treatment and therefore the Industrial Commission was without jurisdiction."
Following that order of the Industrial Commission, the appellee duly filed her petition (from which the two statements quoted above have been drawn) in the Court of Common Pleas of Mahoning County, and a trial to a jury resulted in a verdict and judgment for the plaintiff, appellee here.
On appeal to the Court of Appeals that judgment was affirmed, and the cause is before this court upon the allowance of a motion filed by appellant, The Youngstown Sheet Tube Company, to certify the record.
Mr. Marvin Traxler, for appellee.
Messrs. Manchester, Bennett, Powers Ullman, for appellant.
So far as it is pertinent to the instant facts, Section 4123.52, Revised Code, provides as follows:
"The jurisdiction of the Industrial Commission over each case shall be continuing, and the commission may make such modification or change with respect to former findings or orders with respect thereto, as, in its opinion is justified. No such modification or change nor any finding or award in respect of any claim shall be made with respect to disability, compensation, dependency, or benefits, after ten years from the last payment theretofore made of compensation or benefits awarded on account of injury * * *."
This court in the earlier case involving the same parties ( 159 Ohio St. 554) denied the writ of mandamus sought but in so doing refrained from passing on two certain questions, namely, "Whether the rendering of treatment by a physician employed by a self-insuring employer or the furnishing of the infrared lamp tolls the running of the ten-year statute of limitations."
The facts recited above are stated in such chronological detail so that it may be indisputably clear that all events having to do with treatments of appellee claimed by her to have been personally administered by a physician or nurse employed by appellant occurred more than ten years before October 27, 1955, the stipulated date when the application on which this action is based was filed. The first question not passed upon by the court in the earlier case is therefore no longer in issue. Also, the furnishing of the infrared-ray lamp by appellant to appellee having admittedly occurred in 1941, that event standing by itself is likewise removed from further consideration.
The sole issue which remains is whether the heat treatments applied by the appellee to herself at various times within the ten-year period preceding October 27, 1955, constituted payment of "benefits awarded" and so tolled the running of the statute. Appellee asserts in her amended petition that "sometime prior to that date [July 1944] she was given a special lamp by her employer for treatment purposes and that she still uses said lamp constantly, almost daily, and at the time of the filing of this amended petition, January 22, 1957, plaintiff has used and is being treated by infrared lamp which has been provided by said defendant employer."
As to the use of this lamp, the appellant's physician testified:
"Q. Would you tell the jury with reference to time and also the circumstances of furnishing that lamp? A. We use heat lamps the same as people with an electric heating pad or water bottles, it takes care of muscle soreness temporarily and makes them feel a little better after using them. We gave that lamp to Miss Cestone sometime in the spring, early spring of 1940, the war was on in Europe in 1938 and 1939 and 1940 and medical supplies were not easy to get. Ordinarily these lamps are kept in stock by the Lyons Company and other companies, even the ten cent stores sell these infrared lamps over the counter. When we tried to get one from the Lyons Company they didn't have one but they said they would send one to her as soon as one came in, and that lamp was delivered by the Lyons Company to her home. * * *
"* * *
"Q. Do any of your purchase records or any of the records you have been referring to Mr. Fleming show the kind of lamp it was? I mean the make of the lamp, the size of the lamp or anything connected with the lamp? A. It shows the lamp cost $9, I think.
"Q. That is all you know about the lamp? A. $9.88.
"Q. Is the cost? A. Yes, sir.
"* * *
"Q. Did you ever supervise the giving of any lamp treatments to Miss Cestone at her home? A. No, sir.
"Q. When the lamp was used at her home it was used under her own supervision? A. Yes, sir.
"* * *
"Q. Originally, Doctor, when you prescribed the heat lamp for her didn't you tell her how to use it? A. Yes, plug it in and apply the heat where you had the discomfort.
"Q. You didn't have to tell her each time she used the lamp how to use it? A. No, use it whenever she felt like it."
Appellee's testimony with respect to the lamp is as follows:
"Q. After that time [of appellee's hospitalization in June 1940 for X-ray examination] did Dr. Kennedy buy you a lamp or get you a lamp? A. Well, I went up for a treatment and he was coming through on his lunch hour and coming up to the offices to eat his lunch and stopped and talked to me, and he said, are you ready to go back to the office? and I said, yes, and he drove me back to the office, and he got out of the car in the back of the Sheet Tube office and started walking up and I was in terrible pain and misery and I wasn't getting out of the car and he was half way up to the office and turned around and he came back and he said, what is the matter? and I said, Doctor, I can't even move, and he helped me out of the car. And he said to me that day, I am going to get you a lamp so that you can use it at home when you need it, and that is when he got me the lamp.
"Q. Did you use the lamp? A. Definitely."
Then, after her testimony regarding the claimed July 1944 heat treatment by the company nurse, appellee testified:
"Q. Did you go after that for treatment in the service car? A. After the incident in July, no, I believe that was the last time I went.
"Q. Did you use your lamp at home? A. Definitely.
"Q. Had you had the lamp at that time? A. I have had the lamp for years.
"Q. Now, have you ever had Dr. Kennedy look at you after that time? A. After '44?
"Q. Yes. A. No.
"* * *
"Q. Did you from 1944 up until the time you left the employment go to the company hospital at any time? A. No, I didn't.
"* * *
"Q. Then from that date in July, '44 until 1951 when you quit your employment you never went back to the hospital at all? A. No, I didn't.
"Q. Your answer is `no'? A. No, I didn't.
"* * *
"Q. Who gave you that lamp? A. Dr. Kennedy got it for me.
"Q. Is that the lamp we have been examining and you have been cross-examined about? A. That is the only one I have.
"Q. Are you still using that lamp? A. Definitely.
"Q. At whose direction are you using that lamp? A. Dr. Kennedy's."
We find no additional evidence in the record relating either to the acquisition of this heat lamp by appellee or the extent of her use of it. Neither is there any other evidence relating to directions given to appellee by the appellant's physician as to how, when and for what purpose she should use it.
In its charge to the jury, the trial court stated:
"Treatment as used in the practice of medicine means the application of remedies to the curing of an injury or a disease. A remedy is a medicine or application or process of treatment for a term covering or steps taken to effect a cure of an injury or disease, and includes examination and diagnosis as well as application of remedies. The common and accepted significance of the word `treatment' is the means employed in the cure of injury or disease."
The appellee contends that each use of the infrared lamp by her at home over these years constituted a treatment which had the effect of staying the operation of the ten-year limitation statute. This then requires us to determine as a matter of law whether on the facts of this case continuing use by an employee of an infrared lamp furnished to such employee by the employer is such medical treatment as to constitute a "payment * * * of compensation or benefits awarded on account of injury" so as to toll the operation of the ten-year limitation provided in Section 4123.52, Revised Code. Pertinent citations are difficult to find in this field of law although there is authority to the effect that infrared-lamp treatments are not medical benefits.
In 10 Schneider's Workmen's Compensation (Perm. Ed.), 32, Section 2004(i), it is stated:
"Where doctor bills were paid by the employer and compensation carrier, and the only further treatment needed was the suggested use of an infrared lamp, it was held the employee was not entitled to an award therefore," citing the case of Gray v. Bird Son, Inc. (March 31, 1943), 12 So.2d 828, by the Court of Appeal of Louisiana, an intermediate court in that state.
In the case of LeClair v. Textron Mills, Inc., 77 R.I. 318, 75 A.2d 309, decided by the Supreme Court of Rhode Island, July 27, 1950, an injured employee had a "displacement of the sacrum forward on the 5th lumbar vertebra." The court, in its opinion, quoted from the testimony of the doctor, as follows:
"Q. Do diathermy treatments help the situation, Doctor? A. They relieve pain in the beginning and up to a certain length of time which cannot be determined accurately. But after a condition has existed for a considerable period of time, a good many months, there is no prospect of a cure but it does relieve pain temporarily, perhaps for 24 hours."
The charges claimed for diathermy treatments were denied on the basis that they were not intended as a cure or rehabilitation of the injured employee.
We can find no exactly comparable case previously considered a and determined by this court, but attention is called to the case of Covert v. Industrial Commission, 139 Ohio St. 401, 40 N.E.2d 672, decided in March 1942. In that case, the plaintiff suffered injury in 1923 and compensation was paid to him until April 30, 1927. He filed an application for modification of award for further compensation on September 3, 1937, which application was dismissed by the commission because of the ten-year limitation. The plaintiff asserted, however, that he was paid compensation and benefits as of February 21, 1928, which proved to be reimbursement for certain expenses incurred by him in making a trip to take a physical examination for the purpose of determining whether there was a continuing compensable injury or any basis for a claim entitling claimant to further compensation. No further compensation was awarded to plaintiff as a result of the physical examination given at the time he incurred the expenses for which he was reimbursed in February 1928. The syllabus of that case states:
"The reimbursement of a workmen's compensation claimant for expenses actually incurred by him in making a trip to take a physical examination for the purpose of determining whether there was a continuing compensable injury or any basis for a claim entitling claimant to further compensation, does not constitute a payment `of compensation or benefits,' within the meaning of Section 1465-86, General Code, which provides that no `modification or change of any finding or award * * * shall be made * * * after ten years from the last payment therefore made of compensation or benefits awarded on account of injury or death.'"
The opinion in that case cites the cases of Rahder v. Industrial Commission (1940), 105 Colo. 594, 100 P.2d 1043, and Garden Farm Dairy v. Dorchak, 102 Colo. 36, 76 P.2d 743.
We have been unable to find any other cases which may be considered in any way pertinent to the factual situation here. Appellee has, however, clearly failed here to establish that the infrared lamp was given for curative purposes, as the testimony relates only to the palliative effect of the lamp treatments in relaxing muscles and relieving pain. Certainly if a doctor once recommended aspirin to a patient for headaches, it could not be claimed by such patient that every use of aspirin by him thereafter was under the treatment and direction of such doctor. By the same token, similar comparison may be drawn to the use of such items as electric heating pads, water bottles, ice packs, ultraviolet-ray lamps or any other commonly accepted items for home treatment for ailments. All these items are recognized as being in the class of palliatives most of the time rather than cures.
We must, therefore, conclude as a matter of law that, where an injured employee is furnished an infrared-ray lamp by an employer in a workman's compensation case, chiefly for the purpose of relaxing muscles and relieving pain, continuing use of such heat lamp, self-administered by such employee, after termination of all compensation payments by such employer to such employee, is not such medical treatment as to constitute further "payment * * * of compensation or benefits awarded on account of the injury" so as to toll the running of the ten-year limitation provided in Section 4123.52, Revised Code.
Accordingly, the judgment of the Court of Appeals affirming the judgment of the Court of Common Pleas is reversed and final judgment entered for the appellant herein.
Judgment reversed.
WEYGANDT, C.J., ZIMMERMAN, TAFT, MATTHIAS and BELL, JJ., concur.
PECK, J., not participating.