State ex rel. Basye v. Indus. Comm. - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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The State, ex rel. Basye, Appellee, v. Industrial Commission
of Ohio et al., Appellants.
[Cite as State, ex rel. Basye, v. Indus. Comm. (1992), Ohio
St.3d .]
Workers' compensation -- Commission denial of temporary
total disability compensation not supported by "some evidence,"
when.
(No. 91-149 -- Submitted April 7, 1992 -- Decided June 17, 1992.)
Appeal from the Court of Appeals for Franklin County, No.
90AP-94.
Claimant-appellee, Wilbur W. Bayse, injured his back in 1984
while in the course of and arising from his employment with Truck
Center of Columbus, Inc. He received temporary total disability
compensation until it was terminated in 1987 because the allowed
back conditions had become permanent.
In October 1988, appellee's claim was additionally allowed
for a psychiatric condition. One month later, claimant alleged
that the psychiatric condition had temporarily and totally
disabled him and sought renewed temporary total disability
compensation. A commission district hearing officer on January
11, 1989 denied the request, finding:
"* * * [T]emporary total compensation is denied on a basis
of permanency.
"Further temporary total is not in order as the claimant's
condition under his present treatment regime is permanent and
from a physical standpoint alone precludes him from returning to
his former position.
"The additional psychiatric condition was considered in
making this finding.
"This order is based on the medical reports [sic] of: Dr.
Llewelyn."
A regional board of review affirmed the district hearing
officer's order in its entirety, with additional reliance on the
reports of Drs. Cunningham and Brown. The commission refused
further appeal.
Claimant filed a complaint in mandamus in the Court of
Appeals for Franklin County, alleging that the commission abused
its discretion by denying temporary total disability
compensation. The appellate court vacated the commission's order
because: (1) none of the cited medical reports addressed the
permanency of claimant's psychiatric condition, and (2) the
commission appeared to use improper criteria to evaluate
permanency. The cause was returned to the commission for further
consideration and an amended order.
This cause is now before this court upon an appeal as of
right.

John E. Huntley and Jeffrey L. Huntley, for appellee.
Lee I. Fisher, Attorney General, Jetta Mencer and Dennis L.
Hufstader, for appellants Industrial Commission and Administrator,
Bureau of Workers' Compensation.

Per Curiam. A claimant whose disability has become permanent
may not receive temporary total disability compensation. State, ex
rel. Ramirez, v. Indus. Comm. (1982), 69 Ohio St.2d 630, 23 O.O.3d
518, 433 N.E.2d 586. Until recently, permanency was perceived to

be an absolute bar to receipt of further temporary total
disability compensation. In State, ex rel. Bing, v. Indus. Comm.
(1991), 61 Ohio St.3d 424, 575 N.E.2d 177, however, we re-examined
"permanency" within the context of the commission's R.C. 4123.52
continuing jurisdiction and concluded that, in some situations,
temporary total disability compensation could be reinstated
despite a prior permanency finding.
In this case, the commission initially terminated temporary
total disability compensation after finding that claimant's
allowed conditions had become permanent. At that time, however,
only physical conditions had been allowed in the claim. The
commission's subsequent allowance of a psychiatric condition
prompted a renewed request for temporary total disability
compensation. Despite this additional allowance, however, the
commission denied temporary total disability compensation, again
basing its decision on permanency. We must determine whether the
commission's decision is supported by "some evidence." State, ex
rel

. Burley, v. Coil Packing, Inc. (1987), 31 Ohio St.3d 18, 31 OBR 70,
508 N.E.2d 936, syllabus. For the reasons that follow, we find
that it is not.
For permanency to be a basis for the denial of temporary
total disability compensation, the permanent condition must be
one that has been alleged as contributing to the disability. The
reports of Drs. Llewelyn, Brown and Cunningham -- all dealing
exclusively with claimant's physical condition -- are not,
therefore, "some evidence" supporting the commission's order.
The contents of these reports also indicate that despite the
commission's bare allegation to the contrary, claimant's
psychiatric condition was not truly considered.
The commission's reliance on State, ex rel. Rouch, v. Eagle Tool &
Machine Co. (1986), 26 Ohio St.3d 197, 26 OBR 289, 498 N.E.2d 464,
is misplaced since Rouch is distinguishable from the case at bar.
Unlike the claimant in Rouch, the present claimant does not allege
that the combined effects of his allowed physical and mental
conditions have temporarily and totally disabled him. He has
alleged that his psychiatric condition alone is temporarily and
totally disabling. Rouch is, therefore, not controlling.
We share the appellate court's concern over the permanency
standard used by the commission, since the district hearing
officer's 1989 order suggested that she evaluated permanency in
terms of claimant's inability to work. However, as we have
previously stated:
"* * * [Permanency] relates solely to the perceived
longevity of the condition at issue. It has absolutely no
bearing upon the claimant's ability to perform the tasks involved
in his former position of employment. * * * [Permanency is] * * *
a condition which will, * * * 'with reasonable probability,
continue for an indefinite period of time without present
indication of recovery therefrom.'" Vulcan Materials Co. v. Indus.
Comm. (1986), 25 Ohio St.3d 31, 33, 25 OBR 26, 27, 494 N.E.2d
1125, 1127.
The appellate court's decision to vacate and to return the
cause to the commission for reconsideration of the permanency
issue was thus proper.
Accordingly, the judgment of the court of appeals is
affirmed.

Judgment affirmed.
Moyer, C.J., Sweeney, Holmes, Douglas, H. Brown and Resnick,
JJ., concur.
Wright, J., concurs in judgment only.