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

	ROMINGER LEGAL
		Ohio Court Cases and Opinions - Ohio Legal Research
					Need Legal Help?
					Need Legal Help?
LEGAL RESEARCH CENTER
LEGAL RESEARCH CENTER			LEGAL HEADLINES - CASE LAW - LEGAL FORMS	NOT FINDING WHAT YOU NEED? -RESEARCH

This court case was taken from the web sites of the Ohio Courts. Search our site for more cases - CLICK HERE

LEGAL RESEARCH

COURT REPORTERS

PRIVATE INVESTIGATORS

PROCESS SERVERS

DOCUMENT RETRIEVERS

EXPERT WITNESSES

Find a Private Investigator

Find an Expert Witness

Find a Process Server

Case Law - save on Lexis / WestLaw.

Legal News - Legal Headlines

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 Justine Michael, 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. Kaska et al., Appellees, v. Industrial
Commission of Ohio; ITT Continental Baking Company, Appellant.
[Cite as State, ex rel. Kaska, v. Indus. Comm. (1992), Ohio
St.3d .]
Workers' compensation -- Doctors reports are not "some
evidence" supporting denial of temporary total disability
compensation, when -- "Permanency," construed.
(No. 90-2383 -- Submitted February 11, 1992 -- Decided June 3,
1992.)
Appeal from the Court of Appeals for Franklin County, No.
89AP-382.
Appellee-claimant, Francis R. Kaska, sustained physical and
psychological injuries in the course of and arising from his
employment with appellant, ITT Continental Baking Company, on
January 29, 1979. Claimant received awards for permanent partial
disability under former R.C. 4123.57, for the period January 30,
1979 through October 19, 1981.
Subsequently, claimant applied for temporary total disability
compensation from September 28, 1987 through the "present," based
on the attending physician's report of Dr. Gerard Seltzer. Dr.
Seltzer listed claimant's complaints as "pain & stiffness in
neck, low back & left side," and certified temporary total
impairment from September 28, 1987 through January 25, 1988.

On March 9, 1988, a commission district hearing officer
denied claimant's application, stating:
"* * * [A]s claimant's injuries of 1-29-79 have become
permanent as per Dr. [Donald J.] Weinstein's 2-6-86 exam, Dr.
[V.A.] Nagelis['] 2-26-88 exam, claimant's prior 71% Permanent
Partial Disability award * * *."
The denial of compensation was administratively affirmed.
Claimant thereafter 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 court of appeals found that neither
Drs. Nagelis nor Weinstein provided "some evidence" supporting the
denial of temporary total disability compensation. The court also
questioned whether temporary total disability compensation had
possibly been denied based on claimant's prior permanent partial
disability awards. The court issued a limited writ that vacated
the commission's order and returned the cause to the commission
for further consideration.
This cause is now before this court upon an appeal as of
right.
Dennis O. Norman, for appellee.
Vorys, Sater, Seymour & Pease, Robert A. Minor and Elizabeth T. Smith,
for appellant.
Per Curiam. Temporary total disability compensation cannot

be paid to a claimant whose temporary disability has become
permanent. State, ex rel. Ramirez, v. Indus. Comm. (1982), 69 Ohio
St.2d 630, 23 O.O.3d 518, 433 N.E.2d 586. We must decide whether
the Nagelis report, Weinstein report or prior permanent partial
disability awards are "some evidence" supporting the commission's
denial of temporary total disability compensation. See State, ex
rel. Burley, v. Coil Packing, Inc. (1987), 31 Ohio St.3d 18, 31 OBR 70,
508 N.E.2d 936. For the reasons to follow, we find that there is
no evidence supporting the commission's decision.
Temporary total disability compensation was denied for the
period September 28, 1987 through February 29, 1988. Addressing
the medical evidence first, we note that Dr. V.A. Nagelis did not
examine claimant until February 26, 1988. His report, therefore,
is not "some evidence" supporting denial of temporary total
compensation prior to that time. While the report could support
a denial after February 26, 1988, the commission did not state
the date on which it considered the claimant's condition to have
become permanent. From the wording of the commission's order, we
cannot ascertain whether the condition was found permanent as of
(1) the latest permanent partial disability award of January 16,
1987; (2) Dr. Donald J. Weinstein's February 6, 1986 exam; (3)
Dr. Nagelis' February 26, 1988 exam, or (4) the March 9, 1988
district hearing officer order. We refuse to speculate as to the

commission's intention and, accordingly, find that Dr. Nagelis'
report cannot be considered "some evidence" supporting the
commission's decision.
Dr. Weinstein stated that claimant's psychiatric condition
was permanent. Claimant's alleged temporary total disability,
however, was premised on physical conditions. Evidence that the
claimant's psychiatric condition is permanent is irrelevant in
determining whether claimant's temporary total disability
resulted from his allowed physical conditions.
Turning to claimant's prior permanent partial disability
awards, we observe that former R.C. 4123.56 and 4123.57 do not
indicate whether a permanent partial disability award precludes
later receipt of temporary total disability compensation. The
only contemporaneous reference to the two forms of compensation
occurs in former R.C. 4123.57(D), which states:
"Compensation for [permanent] partial disability under
Divisions (A), (B), and (C) of this section shall be in addition
to the compensation paid the employee for the periods of
temporary total disability resulting from the injury or
occupational disease * * *." (137 Ohio Laws, Part II, 3950.)
Former R.C. 4123.57(D) contains no qualification as to the
chronology of the two awards. Coupled with the absence of
language to the contrary in either former R.C. 4123.56 or
4123.57, these sections should not be considered to bar an award
of temporary total disability compensation following

receipt of permanent partial disability compensation.
Appellant contends that statutory analysis notwithstanding,
the "permanency" element of a permanent partial disability award
is sufficient to preclude receipt of temporary total disability
compensation. This argument, however, necessarily assumes that
"permanent," as used in former R.C. 4123.57 has the same meaning
as that term is used in Ramirez, supra. We find otherwise.
For our purposes herein, "permanent" is not statutorily
defined. (The definition of "maximum medical improvement"
implemented by Am.S.B. No. 307 and R.C. 4123.56 post-dates
claimant's injury.) We defined "permanency," however, as used in
Ramirez, as "a condition that will, '* * * with reasonable
probability, continue for an indefinite period of time without
any 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.
Previously, the Franklin County Court of Appeals held that
"permanency" is subject to differing interpretations. Perhaps
cognizant of the dangers of using the term "permanent" too
loosely, the court wrote that:
"* * * [A] distinction exists between the permanency involved
in a permanent partial disability award, and that considered in
making an award of temporary total disability compensation."
State, ex rel. Schafer, v. Indus. Comm. (Mar.

28, 1989), Franklin App. No. 88AP-130, unreported, at 5.
We recently moved in Schafer's direction in State, ex rel Bing,
v. Indus. Comm. (1991), 61 Ohio St.3d 424, 575 N.E.2d 177, by
stating:
"While Bing's injury may be permanent in the sense that she
will continue to have back troubles in the future, it is not
'permanent' in the Ramirez sense * * *." Id. at 426, 575 N.E.2d
at 180, fn. 2.
Bing, while not specifically distinguishing between permanent
partial disability "permanency," and temporary total disability
compensation "permanency," inferred that the term "permanency"
may have a unique meaning as used in Ramirez. This conclusion is
not without precedent. Workers' compensation law uses specialized
terms of art whose meanings can vary depending on context.
"Totality," for example, has one meaning when used to discuss
permanent total disability; it means something else where
temporary total disability is involved. Permanent total
disability requires a claimant to demonstrate an inability to
perform sustained remunerative employment. State, ex rel. Jennings,
v. Indus. Comm. (1982), 1 Ohio St.3d 101, 1 OBR 135, 438 N.E.2d 420.
Temporary total disability, on the other hand, requires only an
inability to return to the former position of employment.
Ramirez, supra.
There are other reasons for distinguishing between permanent
partial disability "permanency" and Ramirez

"permanency." First, temporary total disability compensation
involves exclusively work-prohibitive disabilities, see Ramirez,
supra, at syllabus, whereas permanent partial disability does not.
More significantly, unlike "permanency" which is a precondition to
receipt of permanent partial benefits, temporary total disability
"permanency" is a termination criterion. The latter supplies
compelling justification for ensuring that temporary total
disability compensation is not terminated on a "permanency basis"
unless there is a clear indication that the claimant's condition
will not improve. See Vulcan, supra.
Permanent partial disability compensation is intended to
compensate injured claimants who can still work. Few working
claimants, however, can predict whether or not their injury will
later worsen and prevent their working at their former job. A
working claimant might be discouraged from seeking permanent
partial disability compensation to which he would be otherwise
entitled if receipt of such benefits would preclude later receipt
of temporary total disability compensation should his condition
worsen. We find this result unacceptable.
Thus, where "permanency" appears in a context other than
temporary total disability -- as occurred here with the earlier
permanent partial disability awards -- we will not automatically
assume that such term is referring to "permanency" in the
specialized Ramirez sense. This conclusion

does not conflict with our previous holding in State, ex rel. Delk,
v. Indus. Comm. (1988), 35 Ohio St.3d 187, 519 N.E.2d 638. That
case held that a doctor's opinion that a claimant had a permanent
partial impairment was "some evidence" supporting the denial of
temporary total disability compensation. There, however, the
doctor was examining the claimant for the purpose of reinstating
temporary total disability benefits, and he specifically stated
that the claimant had a permanent partial, not a temporary total,
impairment. Delk is thus distinguishable from this case.
Accordingly, the judgment of the court of appeals is
affirmed.

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