State rel Hall v. Marion Dresser Industries, Inc. - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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THE STATE EX REL. HALL, APPELLANT, V. MARION DRESSER INDUSTRIES, INC., ET
AL., APPELLEES.
[Cite as State rel Hall v. Marion Dresser Industries, Inc. (1997), ___ Ohio St.3d
___.]
Workers' compensation -- Denial of temporary total disability
compensation by Industrial Commission vacated by Supreme Court
-- Cause returned to commission for further consideration and
amended order, when.

(No. 95-642 -- Submitted July 7, 1997 -- Decided October 1, 1997.)

APPEAL from the Court of Appeals for Franklin County, No. 93APD12-
1718.

Appellant-claimant, Paul E. Hall, injured his lower back in the course of and
arising from his employment with appellee Marion Dresser Industries, Inc.
("Dresser"), a self-insured employer. Dresser began paying temporary total
disability compensation to claimant shortly thereafter.

In July 1991, Dresser moved appellee Industrial Commission of Ohio for
permission to terminate claimant's temporary total disability compensation. This
request was based on the report of Dr. John W. Cunningham, who found claimant
able to return to his former job, but with a fifty-pound lifting restriction.

A commission district hearing officer ordered claimant to submit to a
medical examination with a reset hearing to follow. The district hearing officer
also found that claimant remained temporarily and totally disabled, and continued
compensation to the date of the reset hearing based on Dr. Landefeld's C-84
supplemental report dated August 6, 1991.

On February 4, 1992, the claimant was examined on the commission's
behalf by Dr. Timothy J. Fallon, who concluded:

"We have an individual who currently is 54 yrs. of age and worked for a 12
day period 1 1/2 mos. ago but indicates that he was unable to continue to work
because of back pain. I note that it has been recommended that he have an MRI
and that it was done but I do not have a report of the MRI in the file to review and
I think it is important to rule out any underlying surgical lesion to determine the
permanency of this condition.

"In the meantime, he remains temporarily totally impaired and a copy of the
MRI report should be obtained and I can review that and update the report at that
time."

On July 21, 1992, a regional board of review affirmed the district hearing
officer's order without comment. During the pendency of Dresser's appeal to
commission staff hearing officers, Dr. Fallon examined claimant's MRI results.
He issued a supplemental opinion, which stated:

"MRI of 8/26/91 revealed degen[erative] discs L4[-]5 & L5[-]S1, but no
herniation. Could return to work activity with a # 35 lifting restriction. Not TT."

Staff hearing officers, on October 6, 1993, ultimately modified the regional
board's order, writing:

"* * * Temporary Total Disability is terminated effective 10/6/93. The
claimant has reached maximum medical improvement and his condition has
become permanent. This order is based on the supplemental review by Dr.
Fallon. Dr. Fallon indicated the claimant's condition was not `temporary' and not
`total,' after a review of the MRI of 8/26/91 and other medical evidence in the
claim file."

Claimant filed a complaint in mandamus in the Court of Appeals for
Franklin County, alleging that the commission abused its discretion in denying

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temporary total disability compensation. After finding that the order was
supported by "some evidence," the court of appeals denied the writ.

The cause is now before this court upon an appeal as of right.
__________________

Barkan & Neff Co., L.P.A., and Merl H. Wayman, for appellant.

Vorys, Sater, Seymour & Pease, Robert A. Minor and Theodore P. Mattis,
for appellee Marion Dresser Industries, Inc.

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

Per Curiam. Our evidentiary analysis is hampered by ambiguity in both the
commission's order and Dr. Fallon's supplemental report, which ultimately
obscures the scope of our review. Three aspects of these documents are
particularly confusing.

First, it is unclear whether the commission also found claimant able to
return to his former position of employment. While the commission's order
specified that maximum medical improvement had occurred, it also noted that
claimant's disability was "not `total.'"

Second, the record is insufficient to enable us to determine whether Dr.
Fallon's recommended lifting restriction was consistent with claimant's former
duties so as to permit him to return to work. If an ability to work was not a
secondary basis for the commission's denial of compensation, the commission's
order, as it reads, does not allow us to eliminate this consideration as immaterial.

Finally, Dr. Fallon's indication that claimant is "Not TT," coupled with a
lack of explanation for that statement, renders the statement ambiguous. As we

3

recognized in State ex rel. Pleban v. Indus. Comm. (1997), 78 Ohio St.3d 406, 678
N.E.2d 562, the phrase "not at TT," standing alone, can denote either an ability to
work or maximum medical improvement.

Accordingly, we vacate the commission's order and return the cause to it for
further consideration and amended order, and reverse the judgment of the court of
appeals.
Judgment reversed.

MOYER, C.J., DOUGLAS, RESNICK and F.E. SWEENEY, JJ., concur.

PFEIFER, COOK and LUNDBERG STRATTON, JJ., dissent.

COOK, J., dissenting. I respectfully dissent. I would affirm the judgment of
the court of appeals because "some evidence" supports the finding that Mr. Hall's
allowed condition has become permanent.

PFEIFER and LUNDBERG STRATTON, JJ., concur in the foregoing dissenting
opinion.

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