State ex rel. Tullis v. City Asphalt & Paving Co. - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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THE STATE EX REL. TULLIS, APPELLANT, v. CITY ASPHALT & PAVING COMPANY;
INDUSTRIAL COMMISSION OF OHIO, APPELLEE.
[Cite as State ex rel. Tullis v. City Asphalt & Paving Co. (1997), ___ Ohio St.3d
___.]
Workers' compensation -- Industrial Commission's denial of wage-loss benefits
not an abuse of discretion, when.

(No. 95-842 -- Submitted September 23, 1997 -- Decided December 3,
1997.)

APPEAL from the Court of Appeals for Franklin County, No. 94APD03-387.

Appellant-claimant, Philip L. Tullis, injured his low back in 1988 while
working for City Asphalt & Paving Company. After his workers' compensation
claim was allowed, he began receiving temporary total disability compensation.
Compensation was continued until April 1992, when claimant was released to
return to his former position of employment by his attending physician, Dr. Lynn
M. Mikolich. City Asphalt & Paving did not rehire him, and claimant sought work
elsewhere.

In May 1992, claimant began working full-time for Jeswald's Auto & Truck
Service. Later that year, claimant apparently left that job for more lucrative work
at Tri-County Masonry Construction, Inc.

In September 1992, claimant moved appellee, Industrial Commission of
Ohio, for wage-loss compensation pursuant to R.C. 4123.56(B). A district hearing
officer denied compensation as follows:

"The District Hearing Officer finds and orders that there is insufficient
reliable, proba[tive], and substantial medical proof establishing that claimant
sustained a wage loss from 4/10/92 to date, due to the injury and allowed
conditions in this claim.

"The District Hearing Officer notes claimant's attending physician, Dr.
Mikolich's, M.D. C-84's on file indicating [that] claimant was released to return to
work [on] 4/10/92 without any restrictions.

"Therefore, the District Hearing Officer finds and orders [that] claimant has
failed to demonstrate that she [sic] has sustained a wage loss from 4/10/92 to date
due to the injury in this claim.

"Accordingly, claimant's motion requesting wage loss from 4/10/92 to date
is, therefore, denied in its entirety.

"The Hearing Officer, in making this finding, has taken the following
evidence into consideration: C-94A Wage loss application, Section 4123.56(B)
O.R.C., pay stubs;

"Dr. Mikolich, M.D.: Claimant's physician's C-84's [indicate that] claimant
could return to work 4/10/92 without restrictions. Said request was read and
noted."

The order was administratively affirmed.

Claimant filed a complaint in mandamus in the Court of Appeals for
Franklin County, alleging that the commission had abused its discretion in
denying wage-loss benefits. The court of appeals affirmed the commission's
reasoning and denied the writ.

This cause is now before the court upon an appeal as of right.
__________________

Green, Haines, Sgambati, Murphy & Macala Co., L.P.A., Ronald E. Slipski
and Steven L. Paulson, for appellant.

Betty D. Montgomery, Attorney General, and Cheryl J. Nester, Assistant
Attorney General, for appellee.
__________________

2

Per Curiam. R.C. 4123.56(B) reads:

"Where an employee in a claim allowed under this chapter suffers a wage
loss as a result of returning to employment other than his former position of
employment or as a result of being unable to find employment consistent with the
claimant's physical capabilities, he shall receive compensation at sixty-six and
two-thirds per cent of his weekly wage loss not to exceed the statewide average
weekly wage for a period not to exceed two hundred weeks."

Ohio Adm.Code 4121-3-32(D) additionally provides:

"In injury claims in which the date of injury * * * is on or after August 22,
1986, the payment of compensation [for] wage loss pursuant to division (B) of
Section 4123.56 of the Revised Code shall commence upon application with a
finding of any of the following:

"(1) The employee, as a direct result of the allowed conditions in the claim,
returns to employment other than his former position of employment and suffers a
wage loss.

"(2) The employee returns to his former position but suffers a wage loss.

"(3) The employee, as a direct result of the allowed conditions in the claim,
is unable to find work consistent with the employee's physical capabilities and
suffers a wage loss."

Claimant seeks compensation under subsection (D)(1), although the period
over which he seeks compensation, given his later more lucrative employment
with Tri-County Masonry Construction, Inc., is unclear. Claimant asks us either to
award wage-loss compensation or return the cause for further consideration. The
commission wants its order upheld as is. Our review supports the commission's
position.

3

Claimant's request for wage loss rests on his assertion that his injury
removed him from his former position of employment. Notwithstanding Dr.
Mikolich's full release of claimant to return to his prior duties, claimant proposes
that "but for" his injury, he would not have missed the four years of work that left
his continued employment subject to managerial prerogative. The court of
appeals, however, found this perceived causal link to be too tenuous, holding that
"the meaning of `direct result,' as contemplated by R.C. 4123.56 and Ohio
Adm.Code 4121-3-32, does not go so far as to extend to any result that may
eventually occur down the line."

We agree. To permit a claimant whose injury has, for relevant purposes,
resolved to nevertheless assert a causal relationship between the injury and an
inability to return to the former position of employment sets a dangerous
precedent. We, therefore, find that claimant's lower paying job at Jeswald's Auto
& Truck Service was not related to the industrial injury.

Accordingly, the judgment of the court of appeals is affirmed.
Judgment affirmed.

MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and
LUNDBERG STRATTON, JJ., concur.

4