The opinion
OPINIONS OF THE SUPREME COURT OF OHIO
The full texts of the opinions of the Supreme Court
of Ohio are being transmitted electronically beginning May
27, 1992, pursuant to a pilot project implemented by Chief
Justice Thomas J. Moyer.
Please call any errors to the attention of the
Reporter's Office of the Supreme Court of Ohio.
Attention: Walter S. Kobalka, Reporter, or Deborah J.
Barrett, Administrative Assistant. Tel.: (614) 466-4961;
in Ohio 1-800-826-9010. Your comments on this pilot
project are also welcome.
NOTE: Corrections may be made by the Supreme Court
to the full texts of the opinions after they have been
released electronically to the public. The reader is
therefore advised to check the bound volumes of Ohio St.3d
published by West Publishing Company for the final
versions of these opinions. The advance sheets to Ohio
St.3d will also contain the volume and page numbers where
the opinions will be found in the bound volumes of the
Ohio Official Reports.
The State ex rel. Peabody Coal Company, Appellee, v.
Industrial Commission of Ohio; Middaugh, Appellant.
[Cite as State ex rel. Peabody Coal Co. v. Indus. Comm.
(1993), Ohio St.3d .]
Workers' compensation -- Industrial Commission abuses its
discretion in awarding continued temporary total
compensation when it fails to address the raised
issues of whether allowed conditions had become
permanent and whether claimant had resumed gainful
employment.
(No. 92-2158 -- Submitted April 20, 1993 -- Decided
July 14, 1993.)
Appeal from the Court of Appeals for Franklin County,
No. 91AP-360.
Claimant-appellant, Howard Middaugh, was injured in
the course of and arising from his employment with
appellee, Peabody Coal Company ("Peabody"), a self-insured
employer. After his claim was allowed for "fracture left
arm (elbow)," claimant began receiving temporary total
disability compensation. On November 16, 1988, Peabody
challenged claimant's continuing receipt of temporary
total disability compensation. Peabody accompanied its
motion with the report of Dr. John F.M. O'Leary, who
opined that claimant had reached maximum medical
improvement.
At a January 10, 1989 hearing before the Industrial
Commission, a district hearing officer held:
"* * * [T]he employer's request to have the claimant
examined by an Industrial Commission Specialist is held in
abeyance at this time.
"The claimant is presently scheduled to receive
living maintenance until 2-26-89. If the claimant
requests Temporary Total after that date[,] refer the
claimant to MEDSP (medical specialist) for an exam on the
issue of extent of disability, then reset on that issue."
No appeal was taken from this order.
On November 14, 1989, claimant moved the commission
to recognize "left ulnar neuropathy" as part of his
claim. He also sought reinstatement of temporary total
compensation from the date of the last payment to continue
into the future upon submission of medical proof. Among
other evidence submitted in support was a C-84
supplemental physician's report from claimant's attending
physician, Lawrence M. Lubbers, which certified claimant
as temporarily and totally disabled through November 1,
1989 due to the neuropathic condition.
On January 22, 1990, a district hearing officer held:
"The claim is additionally allowed for:
'post-operative left ulnar neuropathy,' per the report of
Dr. Lubbers.
"Temporary Total Compensation is awarded from 4-2-89
through 10-31-89 and to continue until the reset hearing.
"Claimant is referred to MEDSP (Medical Specialist)
for an examination on the issues of extent of disability
and permanent total impairment.
"Reset on extent of disability when the MEDSP report
is on file."
Peabody appealed. Before the Regional Board of
Review, Peabody submitted evidence alleging that claimant
had worked while drawing temporary total compensation.
The board's order, however, did not address these
allegations and merely affirmed the January 22, 1990
district hearing officer's order "based on the Employer's
appeal, evidence in the file and/or evidence adduced at
the hearing." The commission refused further appeal.
Peabody filed a complaint in mandamus in the Court of
Appeals for Franklin County, claiming that the commission
erred in awarding continued temporary total compensation.
The appellate court agreed, finding that the commission
abused its discretion by failing to address the issues of
whether the allowed conditions had become permanent and
whether claimant had resumed gainful employment. It
vacated the commission's order and returned the cause to
the commission for consideration of these issues, with
further payment of compensation to be precluded until the
claimant is examined by a specialist and a determination
is made, after a hearing, of the extent of claimant's
disability.
This cause is now before this court upon an appeal as
of right.
Vorys, Sater, Seymour & Pease, Sarah J. Cruise and
Julie M. Larson, for appellee Peabody Coal Company.
Robert B. Liss, for appellant.
Per Curiam. Among the reasons justifying termination
of temporary total disability compensation are: (1) return
to sustained gainful employment, or (2) claimant has a
permanent disability, i.e., has reached maximum medical
improvement. State ex rel. Ramirez v. Indus. Comm.
(1982), 69 Ohio St.2d 630, 23 O.O.3d 518, 433 N.E.2d 586;
Vulcan Materials Co. v. Indus. Comm. (1986), 25 Ohio St.3d
31, 25 OBR 26, 494 N.E.2d 1125. During the administrative
proceedings in this case, claimant's entitlement to
temporary total compensation was challenged on these two
bases. None of the orders issued, however, addressed
these matters. For the reasons set forth below, we return
the cause to the commission for further consideration and
a new order.
In State ex rel. Gen. Am. Transp. Corp. v. Indus.
Comm. (1990), 49 Ohio St.3d 91, 551 N.E.2d 155, the
claimant's inability to work was undisputed. Evidence
also indicated that claimant suffered from severe health
problems unrelated to his industrial injury. The
commission found that claimant could not return to his
former job and awarded temporary total compensation.
However, because the commission had not addressed the
causal relationship question that had been placed squarely
before it, we remanded the cause for further consideration
and an amended order, writing:
"* * * [A]ll agree that claimant is unable to return
to his former job. The key question is whether this
inability is due to the claimant's allowed conditions or
to his other medical problems.
"The commission's order does not address this
critical issue. It merely confirms that a
work-prohibitive disability exists. Without a clear
commission statement on causal relationship, evidentiary
review is impossible." Id. at 92, 551 N.E.2d at 156-157.
Peabody placed the permanency question before the
district hearing officer and the gainful employment
allegation before the regional board of review, yet none
of the ensuing orders discussed these allegations. Since
an affirmative finding as to either precludes temporary
total compensation, the appellate court correctly returned
the cause to the commission for further consideration.
Claimant argues that the allowance of a new condition
- left ulnar neuropathy - - relieved the commission from
having to discuss the permanency question. Claimant
reasons that with the additional allowance, Dr. O'Leary's
report could not be "some evidence" of permanency since it
addressed only claimant's initial condition. Claimant's
evidentiary reasoning may be correct. However, the fact
that there may be no evidence of permanency does not free
the commission from having to make that finding in its
order, given the facts of this case.
Claimant alternatively asserts that the district
hearing officer did "address" the permanency issue when it
referred claimant for a specialist examination. This
contention fails. The district hearing officer's order
does not reflect a determination of whether claimant had
or had not reached maximum medical improvement. Without
that determination, the hearing officer cannot be said to
have "addressed" the issue. Mere referral for evaluation
resolved nothing.
Claimant also suggests that the regional board's
silence on the gainful employment issue indicates a
rejection of that assertion. In support, claimant cites
State ex rel. DeMint v. Indus. Comm. (1990), 49 Ohio St.3d
19, 550 N.E.2d 174, which held that the submission of new
evidence at the board level does not require separate
evidentiary findings if the board chooses not to rely on
that evidence.
At issue before the district hearing officer in
DeMint was claimant's ability to return to his old job.
Claimant appealed the district hearing officer's denial of
temporary total compensation and presented additional
medical evidence of his inability to work to the regional
board of review. The board, however, affirmed the
district hearing officer's order "based on the claimant's
Appeal, evidence in the file and/or evidence adduced at
the hearing," without mentioning the new evidence.
Claimant attacked the board's order, and the court of
appeals granted a limited writ of mandamus, holding that
the board's failure to prepare separate evidentiary
findings, in light of the new evidence, violated State ex
rel. Mitchell v. Robbins & Myers, Inc. (1983), 6 Ohio
St.3d 481, 6 OBR 531, 453 N.E.2d 721.
We disagreed, noting that Mitchell required citation
only of evidence relied on, not that which is merely
considered. Accordingly, we held:
"[T]he submission of new evidence does not require
separate Mitchell findings if the reviewer does not rely
on that evidence. Where a regional board adopts the
reasoning and decision of the district hearing officer and
the district hearing officer's order satisfies Mitchell,
we consider the regional board's order in compliance as
well." DeMint, supra, 49 Ohio St.3d at 20, 550 N.E.2d at
176.
The present claimant suggests that the lack of
citation to alleged gainful employment in the regional
board's order indicates that the board considered, but did
not rely on, that evidence. DeMint, however, is
distinguishable from this case and thus cannot support
claimant's position. As the court of appeals in the
instant case, through its referee, aptly stated:
"* * * In DeMint, the regional board faced the same
question decided by the district hearing officer, but with
additional evidence presented. In the instant case, the
additional evidence submitted to the board presented an
issue that was not before the district hearing officer."
(Emphasis added.)
When the regional board, without comment, simply
affirmed the district hearing officer's order - - which
was premised solely on the medical question of ability to
return to the former position of employment - - it ignored
another, separate question before it, i.e., whether the
claimant had undertaken other sustained remunerative
employment. Even where a claimant is medically unable to
return to his former job, he cannot continue to receive
temporary total compensation once he has accepted other
sustained gainful employment. State ex rel. Nye v. Indus.
Comm. (1986), 22 Ohio St.3d 75, 22 OBR 91, 488 N.E.2d 867;
State ex rel. Johnson v. Rawac Plating Co. (1991), 61 Ohio
St.3d 599, 575 N.E.2d 837. As the referee noted in his
report to the court of appeals, the regional board may
indeed have rejected as unpersuasive the allegation that
claimant had been working. However, if it did, the order
should have specifically so stated. Without a specific
finding on this second, distinct issue, the regional
board's order cannot be evaluated to determine whether an
abuse of discretion occurred.
Peabody claims that the award was improper for the
additional reason that it contravened the January 10, 1989
order and, therefore, violated res judicata. This
assertion is premised on Peabody's belief that the January
10, 1989 order prohibited further temporary total
compensation without prior examination and hearing. This
is incorrect. While the order did indeed provide that
claimant should be examined and a hearing held if claimant
requested further temporary total compensation, the order
did not expressly prohibit compensation payment in the
interim. While this may have been what the commission
meant, it is not what it said. As a result, we find that
the January 22, 1990 order did not alter the earlier final
order, and res judicata was not violated. We also find
that the appellate court erred in ordering the commission
to stay the payment of all temporary total disability
compensation to the claimant pending a commission medical
examination.
Accordingly, we reverse that portion of the court of
appeals' judgment which prohibits the payment of any
temporary total disability compensation pending a
commission medical evaluation. The balance of the
judgment is affirmed.
Judgment affirmed in
part and reversed in
part.
Moyer, C.J., A.W. Sweeney, Douglas, Resnick, F.E.
Sweeney and Pfeifer, JJ., concur.
Wright, J., not participating.