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

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The State ex rel. Clark, Appellee, v. Industrial Commission of
Ohio et al., Appellants.
[Cite as State ex rel. Clark v. Indus. Comm. (1995), Ohio
St.3d .]
Workers' compensation -- Application for temporary total
disability compensation -- Examining physician's knowledge
of physical requirements associated with former position
of employment demonstrated, when.
(No. 94-118 -- Submitted April 4, 1995 --
Decided June 28, 1995.)
Appeal from the Court of Appeals for Franklin County, No.
92AP-826.
In 1987, appellee-claimant, Patrick Clark, dislocated his
left shoulder while in the course of and arising from his
employment with respondent Horvitz Construction Company. In
June 1988, claimant moved appellant Industrial Commission of
Ohio for, among other things, temporary total disability
compensation from June 16, 1988 through August 31, 1988, based
on the medical certification of then attending physician, Dr.
D.K. Lee. Dr. Lee ultimately submitted four C84 "physician
report[s] supplemental" that extended temporary total
disability to June 30, 1989. On each form, the following
questions were left unanswered: (1) "What was the claimant's
position of employment at the time of injury[?]" and (2) "What
were claimant's duties[?]"
Dr. Stanley L. Dobrowski examined claimant on the
commission's behalf. He reported that:
"The claim was allowed for dislocation of the left
shoulder. The claimant states that he was pushing an air
compressor and he slipped on some gravel and heard his shoulder
pop out and heard it pop back in. Initially seen at Metro
General Hospital where a sling was applied. Has had follow-up
treatment at the St. Clair Industrial Clinic. States that he
had a previous dislocation of the shoulder approximately 2
years prior to this incident. Following the injury the
claimant was able to return to work as a construction worker
and was laid off."
On examination, Dr. Dobrowski found:

"There is slight atrophy of the muscle of the left
shoulder. There is no edema [o]r inflammation. The claimant
is able to abduct and adduct and internally rotate and
externally rotate the left shoulder. There is difficulty with
elevation of the left arm above the head."
He concluded that claimant could "return to his previous
position as a construction worker."
Dr. Robert C. Corn, who also treated claimant, wrote on
January 3, 1990:
"The above Claimant has been under my care since 4/27/89
in reference to residuals of injury sustained to his left
shoulder while employed as a construction laborer. The injury
occurred on 5/13/87. While lifting and turning a large
compressor on a construction job and walking on a gravel
surface, he lost his footing and fell directly along the
anteriolateral aspect of his left shoulder. He has had
problems with his shoulder since that time. There is [sic]
repetitive sensations of 'popping and clicking' which would
[be] suggestive of left shoulder instability."
He ventured no opinion on claimant's current ability to resume
his former duties.
On May 20, 1991, however, Dr. Corn wrote:
"It is my opinion, based on reasonable medical certainty and
probability that Mr. Clark remains temporarily and totally
disabled since my first initial evaluation on April 27, 1989.
In my opinion he will remain on temporary total disability
status until he has completed a work conditioning program. An
evaluation will need to be performed at that point to ascertain
whether he is capable of returning to his previous type of work
as a construction laborer. It is my opinion that he has not
reached his point of maximum medical improvement. The only way
to ascertain this would be to have him at a complete work
conditioning program." (Emphasis sic.)
Dr. Corn, in a March 3, 1992 C84 report, extended
temporary total disability to July 1, 1992. To the question
"What was the claimant's position of employment at the time of
injury[?]," he wrote "Horvitz Construction [claimant's
employer]." When asked "What were claimant's duties[?]," Dr.
Corn responded "construction laborer."
Temporary total disability compensation was denied after
the commission, relying on Dr. Dobrowski's report, found that
claimant could return to his former position of employment.
Claimant filed a complaint in mandamus in the Court of
Appeals for Franklin County, alleging that the commission
abused its discretion in denying temporary total disability
compensation. The appellate court found that Dr. Dobrowski's
report was not "some evidence" supporting the commission's
decision because:
"* * * Dr. Dobrowski was not sufficiently apprised of
relator's job duties to express an opinion as to whether he
could return to his former position of employment as a
construction worker. There is nothing in the record to show
that Dr. Dobrowski possessed any 'knowledge of the physical
requirements associated with the former position of
employment,' as required by State ex rel. Braswell v. Indus.
Comm. (1986), 25 Ohio St.3d 61, 63 [25 OBR 83, 85-86, 494
N.E.2d 1147, 1149-1150], other than the fact that he knew that

relator was a construction worker. The referee stated in
pertinent part:
"'* * * Although Dr. Dobrowski was aware that relator was
a construction worker, it does not appear that he was
sufficiently apprised of relator's duties with regard to
operating a jackhammer for approximately half of his work day.
Given the obvious physical exertion associated with operation
of a jackhammer, Dr. Dobrowski's reference to relator's job
title as 'construction worker' does not support an inference
that Dr. Dobrowski was aware of relator's duties as a
jackhammer operator. * * *'"
The appellate court vacated the commission's orders terminating
temporary total disability compensation, and returned the cause
to the commission for further consideration and amended order.
This cause is now before this court upon an appeal as of
right.

Wincek & DeRosa Co., L.P.A., Christopher G. Wincek and
Kurt M. Young, for appellee.
Betty D. Montgomery, Attorney General, and Gerald H.
Waterman, Assistant Attorney General, for appellants Industrial
Commission and Administrator, Bureau of Workers' Compensation.

Per Curiam. "[A] physician conducting a medical
examination, where the claimant seeks temporary total
disability benefits, should, in most cases, possess some
knowledge of the physical requirements associated with the
former position of employment[.] [W]e deem it unnecessary for
the physician to trace, in detail, every physical movement
necessitated during the average workday." State ex rel.
Braswell v. Indus. Comm. (1986), 25 Ohio St.3d 61, 63, 25 OBR
83, 85-86, 494 N.E.2d 1147, 1149-1150.
In vacating the commission's order, the appellate court rul
ed that Dr. Dobrowski's report did not satisfy Braswell. We
disagree, noting that the report specifically indicates that
the doctor knew that claimant was a construction laborer.
Claimant responds that "construction worker" is too general
a term, claiming that it encompasses many different duties
entailing many different levels of physical exertion. While
this may be true, there is no evidence that Dr. Dobrowski
misperceived claimant's duties to the detriment of any
interested party. There is no indication that Dr. Dobrowski
based his conclusion on the erroneous belief that claimant's
occupation consisted of sedentary, light or medium work. To
the contrary, Dr. Dobrowski noted that claimant was injured
while pushing an air compressor -- a heavy piece of machinery.
Accordingly, we find that the report was "some evidence"
supporting the commission's decision.
Ironically, the same "deficiencies" that allegedly
invalidate Dr. Dobrowski's report permeate all of claimant's
supporting disability evidence as well. Dr. Lee, who certified
temporary total disability from June 16, 1988 to June 30, 1989,
consistently declined to identify claimant's former position of
employment or duties on four C84s. Dr. Lee, therefore,
demonstrates no knowledge of claimant's duties.
So, too, with Dr. Corn. His 1990 report describes
claimant as a "construction laborer" and recites, almost

identically, the description of injuries set forth by Dr.
Dobrowski. Dr. Corn's 1991 report also refers to claimant's
former position of employment as "construction laborer" with no
other elaboration. Finally, on Dr. Corn's sole C84, he again
lists claimant's duties as "construction laborer" and
claimant's former position of employment as "Horvitz
Construction." Claimant's proposition does not, therefore,
advance his claimed entitlement to compensation.
The judgment of the court of appeals is reversed.
Judgment reversed.
Moyer, C.J., Douglas, Wright, F.E. Sweeney, Pfeifer and
Cook, JJ., concur.
Resnick, J., dissents.