The opinion
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The State ex rel. Jeep Corporation, Appellant, v.
Industrial Commission of Ohio et al., Appellees.
[Cite as State ex rel. Jeep Corp. v. Indus. Comm.
(1992), Ohio St.3d .]
Workers' compensation -- Where statement of maximum medical
improvement of an allowed condition is made by claimant's
doctor, not only is that report not "some evidence"
supporting continued temporary total compensation for that
condition, it is justification for a self-insured employer
to cease temporary total compensation without prior
commission hearing.
(No. 91-316 -- Submitted April 27, 1992 -- Decided August
12, 1992.)
Appeal from the Court of Appeals for Franklin County, No.
89AP-568.
Claimant-appellee, Larry Chickeral, was injured on March
12, 1985 while in the course of and arising from his employment
with appellant, Jeep Corporation ("Jeep"). Jeep, a self-insured
employer, immediately began paying temporary total disability
compensation. On July 15, 1986, Jeep had claimant examined by
Dr. F.B. Hawkins. Dr. Hawkins concluded that claimant's
allowed condition had reached maximum medical improvement.
Shortly thereafter, Jeep moved appellee Industrial
Commission ("the commission") to terminate claimant's temporary
total disability compensation, submitting Dr. Hawkins' report
in support. A district hearing officer on September 18, 1986
denied Jeep's motion, writing:
"Claimant can not return to his former position of
employment within the restrictions indicated by Fred B.
Hawkins, M.D.
"* * *
"Temporary Total Disability compensation to be awarded
from date last paid through 9-29-86 and to continue upon the
submission of supporting medical evidence.
"This decision is based on the medical reports of Drs.
Fred B. Hawkins (7-15-86) and Gerald O'Conner [sic, O'Connor]."
Neither party appealed.
After paying temporary total compensation prospectively
through March 1, 1987, Jeep obtained the September 19, 1986
narrative of Dr. Gerald A. O'Connor, claimant's attending
physician. In that report, O'Connor indicated that claimant
had reached maximum medical recovery. Based on that report,
Jeep refused to pay further temporary total compensation. A
March 12, 1987 C-84 Attending Physician's Report from Dr.
O'Connor reiterated his conclusion that claimant had reached
maximum improvement.
On August 20, 1987, a hearing was held on claimant's
entitlement to further temporary total compensation. The
hearing officer held:
"Based on the allowed conditions of this claim and the
reports of Drs. Hein, Hawkins and O'Connor, it is found that
claimant's condition is permanent as defined in Vulcan
Materials [Co.] v. Industrial Commission [(1986), 25 Ohio St.3d
31, 25 OBR 26, 494 N.E.2d 1125] and that no further
compensation for Temporary Total Disability is to be paid
effective 8-20-87. Based on the reports of Drs. Hein, Hawkins
and O'Connor, the allowed conditions of this claim and the
provisions of [R.C.] 4123.56, it is found that claimant was not
able to return to his former position of employment through
8-19-87 and that compensation for Temporary Total Disability is
to be paid from last date of payment through 8-19-87 only."
The order was administratively affirmed.
Jeep sought a writ of mandamus from the Court of Appeals
for Franklin County, contesting the award of temporary total
compensation from March 1, 1987 through August 19, 1987. The
appellate court found that a July 22, 1987 C-84 by Dr. O'Connor
was "some evidence" supporting the award and denied the writ.
This cause is now before this court upon an appeal as of
right.
Eastman & Smith, John T. Landwehr and Thomas J. Gibney,
for appellant.
Lee I. Fisher, Attorney General, Michael L. Squillace,
Dennis L. Hufstader and Teresa Oglesby-McIntyre, for appellee
Industrial Commission.
Gallon, Kalniz & Iorio Co., L.P.A., and Theodore A.
Bowman, for appellee Chickeral.
Per Curiam. Jeep contends that the Hawkins, Hein and
O'Connor reports are not "some evidence" supporting temporary
total compensation from March 1, 1987 through August 19, 1987.
Appellees counter that some evidence did exist, and that
appellant cannot contest the award because appellant: (1) did
not appeal the September 18, 1986 order extending temporary
total compensation, and (2) was statutorily required to
continue payments until compensation was terminated by the
commission. Appellees' arguments fail.
The September 18, 1986 commission decision awarded
compensation from "date last paid through 9-29-86 and to
continue upon the submission of supporting medical evidence."
Appellees maintain that Jeep, by not appealing this order,
consented to pay temporary total compensation so long as
claimant submitted "supporting medical evidence" of temporary
total disability. Appellees' statement, while correct,
however, ignores the fact that medical evidence of maximum
medical improvement is not "some evidence" of temporary total
disability. Vulcan Materials Co. v. Indus. Comm. (1986), 25
Ohio St.3d 31, 25 OBR 26, 494 N.E.2d 1125.
Where a statement of maximum medical improvement of an
allowed condition is made by the claimant's doctor, not only is
that report not "some evidence" supporting continued temporary
total compensation for that condition, it is justification for
a self-insured employer to cease temporary total compensation
without prior commission hearing. State ex rel. Jeep Corp. v.
Indus. Comm. (1991), 62 Ohio St.3d 64, 577 N.E.2d 1095.
We must next determine whether the Hein, Hawkins or
O'Connor reports are "some evidence" supporting temporary total
disability compensation from March 1, 1987 through August 19,
1987. State ex rel. Burley v. Coil Packing, Inc. (1987), 31
Ohio St. 3d 18, 31 OBR 70, 508 N.E.2d 936. Dr. Hein's
narrative clearly is not. Hein's opinion is not probative over
the period preceding his June 24, 1987 exam. It cannot,
therefore, support temporary total compensation from March 1,
1987 through June 23, 1987. In contrast, while his opinion is
relevant for the period June 24, 1987 through August 19, 1987,
Dr. Hein stated that claimant had reached maximum recovery. As
a result, his report cannot be considered "some evidence" of
temporary total disability over this latter period.
Dr. Hawkins' report is also not "some evidence" for two
reasons. First, State ex rel. Zamora v. Indus. Comm. (1989),
45 Ohio St.3d 17, 543 N.E.2d 87, prohibits the commission from
relying on a medical report that the commission had earlier
found unpersuasive. In Zamora, the claimant simultaneously
applied to have an additional psychiatric allowance and to have
himself declared permanently totally disabled. The claimant
was examined by various specialists, including Dr. Dennis W.
Kogut, who stated that the claimant's depression preceded his
industrial injury and that the contribution of the industrial
injury to the depression was minimal.
The commission allowed the psychiatric condition and, in
so doing, implicitly rejected Kogut's report. However, ten
months later, the commission denied the application for
permanent total disability based partially on Dr. Kogut's same
narrative. The claimant challenged the commission's subsequent
reliance on that report, arguing that once rejected, the report
was removed from evidentiary consideration. We agreed.
Comparable facts exist here. Jeep, in initially moving to
terminate temporary total compensation in 1986, submitted Dr.
Hawkins' report as proof that claimant was not temporarily and
totally disabled. In granting temporary total compensation,
the commission inherently rejected, at a minimum, the doctor's
conclusion that claimant had attained maximum improvement. The
commission then relied on that report in its August 20, 1987
order. Under Zamora, the rejection of that report is
sufficient to remove that document from further evidentiary
consideration.
Second, even if properly before the commission, Dr.
Hawkins' report concluded that claimant had reached maximum
recovery. His report, therefore, did not substantiate a
temporary total disability award.
The most controversial reports in this case are Dr.
O'Connor's, particularly his July 22, 1987 C-84 report. Prior
to that report, the doctor had, on September 19, 1986 and March
12, 1987, stated that his patient had reached maximum medical
improvement. On July 22, 1987, Dr. O'Connor extended
claimant's estimated return-to-work date to August, noting that
claimant would "never attain complete recovery." The appellate
court found that this report constituted "some evidence"
supporting temporary total compensation. We disagree. Dr.
O'Connor's July 22, 1987 impairment opinion is based in part on
degenerative joint disease in both of claimant's knees, which
is not an allowed condition in this claim. As such, the report
does not constitute "some evidence."
In consideration of the above, we reverse the judgment of
the court below.
Judgment reversed.
Moyer, C.J., Sweeney, Holmes and Wright, JJ., concur.
Douglas and Resnick, JJ., dissent.
H. Brown, J., not participating.
Douglas, J., dissenting. In this case, the Industrial
Commission granted claimant temporary total disability
compensation. A unanimous court of appeals, by denying
appellant's requested writ, affirmed the decision of the
fact-finding commission. The court of appeals found that this
was a "some evidence" case and found, in Dr. O'Connor's report
of July 22, 1987, some evidence to support the commission's
decision. I would affirm the court of appeals.
Alice Robie Resnick, J., dissenting. I respectfully
dissent from the majority decision. In this case relator's
motion to terminate compensation was heard on August 20, 1987
by a district hearing officer, who issued an order finding, in
pertinent part, as follows:
"Based on the allowed conditions of this claim and the
reports of Drs. Hein, Hawkins and O'Connor, it is found that
claimant's condition is permanent as defined in Vulcan
Materials v. Industrial Commission and that no further
compensation for Temporary Total Disability is to be paid
effective 8-20-87. Based on the reports of Drs. Hein, Hawkins
and O'Connor, the allowed conditions of this claim and the
provisions of 4123.56, it is found that claimant was not able
to return to his former position of employment through 8-19-87
and that compensation for Temporary Total Disability is to be
paid from last date of payment through 8-19-87 only."
By order dated January 13, 1988, the regional board of
review affirmed the district hearing officer's order. The
Industrial Commission refused review. It would appear that a
majority of this court are substituting their judgment for that
of the fact finder in this case by interpreting the report of
Dr. O'Connor and making a finding that his report does not
provide some evidence that respondent was experiencing
temporary total disability up to and including August 19, 1987.
It is an accepted premise that the determination of
disputed facts is solely within the jurisdiction of the
commission. Additionally, it is within the exclusive authority
of the commission to weigh credible evidence and to make
decisions based on that evidence. State ex rel. Hudson v.
Indus. Comm. (1984), 12 Ohio St.3d 169, 12 OBR 237, 465 N.E.2d
1289; State ex rel. Allerton v. Indus. Comm. (1982), 69 Ohio
St.2d 396, 23 O.O.3d 358, 433 N.E.2d 159; State ex rel. Haines
v. Indus. Comm. (1972), 29 Ohio St.2d 15, 58 O.O.2d 70, 278
N.E.2d 24.
The commission refused to hear the appeal from the
regional board and, thereby, in effect, found some evidence to
support the finding of temporary total disability until August
19, 1987. In view of that fact we should not sit as a Supreme
Industrial Commission and make a different factual finding as
to Dr. O'Connor's report. An important additional
consideration is that the reports of the doctors were factually
confusing. Since Dr. O'Connor's July 22, 1987 report did
contain some evidence of temporary total disability, the
decision should remain in effect and not be subject to an
action in mandamus. State ex rel. Hudson, supra; State ex rel.
G F Business Equip., Inc. v. Indus. Comm. (1981) 66 Ohio St.2d
446, 20 O.O.3d 379, 423 N.E.2d 99. Hence, based on those facts
I would affirm the decision of the court of appeals and deny
the writ.
Douglas, J. concurs in the foregoing dissenting opinion.