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

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The State ex rel. Pleban, Appellant, v. Industrial Commission of Ohio,
Appellee.
[Cite as State ex rel. Pleban v. Indus. Comm. (1997), _____ Ohio St.3d
____.]
Workers' compensation -- Application for temporary total disability
compensation -- Claimant's prior permanent partial disability
award cannot be "some evidence" supporting termination of
temporary total disability compensation on a permanency
basis.

(No. 95-231 -- Submitted March 4, 1997 -- Decided May 14, 1997.)

Appeal from the Court of Appeals for Franklin County, No.
94APD01-60.

In 1987, appellant-claimant, Richard J. Pleban, Jr., injured his low
back in the course of and arising from his employment with Lawnco, Inc.
Claimant subsequently moved appellee, Industrial Commission of Ohio, for
determination of his permanent partial disability pursuant to R.C. 4123.57.
Claimant was examined by Dr. Lydia Ljuboja on April 20, 1989, and found
to have a thirty-five percent permanent partial disability. On July 28, 1989,
based on the report of Dr. J.J. Fierra, a district hearing officer found

claimant to have a twenty-two percent permanent partial disability, and
compensation was paid.

In December 1989, claimant filed a C86 motion requesting temporary
total disability compensation commencing November 17, 1989. Claimant
also filed a C85-A claim reactivation form that sought the same thing. On
the claim reactivation form, Dr. Brian Miller reported that he had seen
claimant on November 17, 1989, that claimant had temporary total
disability, and that the disability was due to claimant's industrial injury.

On June 18, 1990, claimant was examined by Dr. I. Vidu. Dr. Vidu
concluded:

"Based on history, physical examination, subjective and objective
findings, data available, utilization of the AMA Impairment Guidelines, it is
the opinion of this examiner that the claimant is not at TT right now. His
condition has become permanent."

On July 18, 1990, a commission district hearing officer denied
compensation, writing:

"[The] District Hearing Officer orders claimant's request for
temporary total from 11/17/89 to present denied based on a prior 22%

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permanent partial disability determination and Dr. Vidu's 7/3/90
examination [sic, report] that claimant is not temporary total and claimant's
10/2/87 injury has become permanent."

A regional board of review modified the order:

"The Board orders [the] District Hearing Officer's order of 7/18/90
modified. [The] Board finds that claimant's condition has not reached
permanency and that claimant returned to work with another employer on
7/19/90. Affirmed [in] all other respects.

"The order here is based on the evidence in the file and/or evidence
adduced at the hearing."
Staff hearing officers affirmed the board without comment.

Claimant filed a complaint in mandamus in the Court of Appeals for
Franklin County, alleging that the regional board's vacation of the
permanency finding constituted a declaration that claimant was temporarily
and totally disabled. The court of appeals disagreed, but found that because
the board's order did not identify the evidence on which it relied to vacate
the permanency finding, it violated State ex rel. Mitchell v. Robbins &
Myers, Inc. (1983), 6 Ohio St.3d 481, 6 OBR 531, 453 N.E.2d 721. The

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court of appeals thus returned the cause to the commission to vacate its
order denying compensation and issue an amended order identifying the
evidence on which it relied.

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

Seaman & Associates Co., L.P.A., and Michael I. Madden, for
appellant.

Betty D. Montgomery, Attorney General, and Melanie Cornelius,
Assistant Attorney General, for appellee.

Per Curiam. This controversy stems largely from a confusing
regional board order. The order vacated the finding of permanency
underlying the denial of compensation without vacating the denial itself. To
the contrary, it specifically "[a]ffirmed [the order in] all other respects."

Claimant essentially argues that the vacation of the permanency
finding compels the issuance of temporary total disability compensation.
This is incorrect. The lack of "some evidence" supporting a denial of
temporary total disability compensation does not equate to "some evidence"
supporting its award. State ex rel. Lampkins v. Dayton Malleable, Inc.
(1989), 45 Ohio St. 3d 14, 542 N.E.2d 1105. Claimant still has the burden

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of establishing the requisite elements of temporary total disability. In this
case, Dr. Miller certified claimant as able to return to his former position of
employment as of January 2, 1990. Since an ability to return to the former
position precludes temporary total disability (State ex rel. Ramirez v. Indus.
Comm. [1982], 69 Ohio St.2d 630, 23 O.O.3d 518, 433 N.E.2d 586),
claimant cannot establish an entitlement to temporary total disability
compensation from January 2, 1990 through July 18, 1990.

Dr. Miller does certify claimant as temporarily and totally disabled
from November 17, 1989 through January 1, 1990. His certification of
claimant's inability to return to his former position of employment is
uncontested. Dr. Vidu's statement that claimant is "not at TT" is too
ambiguous to support a conclusion that claimant can work. The phrase "not
at TT" could also mean that claimant's condition is "permanent" -- a term
that Vidu uses elsewhere in his report.

It is the status of claimant's condition -- permanent or temporary --
which will determine claimant's entitlement to temporary total disability
compensation from November 17, 1989 through January 1, 1990. The
district hearing officer found the condition to be permanent. The board

5

found that it was not, but did not explain how or upon what evidence it
reached that conclusion. That, in turn, prompted a return of the cause to the
commission by the appellate court. We find such relief to be inappropriate.

State ex rel. Gay v. Mihm (1994), 68 Ohio St.3d 315, 626 N.E.2d 666,
dispensed with further consideration where the facts dictated but one
finding -- that of disability. Examination of the record reveals a similar
situation here. Claimant's prior permanent partial disability award cannot
be "some evidence" supporting termination of temporary total disability
compensation on a permanency basis. State ex rel. Kaska v. Indus. Comm.
(1992), 63 Ohio St.3d 743, 591 N.E.2d 235. Likewise, because Drs.
Ljuboja and Fierra examined claimant expressly for the purpose of assessing
permanent partial disability, their reports are not "some evidence"
supporting the denial of temporary total disability compensation. Finally,
Dr. Vidu's report is not "some evidence" supporting permanency from
November 17, 1989 through January 1, 1990, since he did not examine
claimant until June 18, 1990. State ex rel. Case v. Indus. Comm. (1986), 28
Ohio St.3d 383, 28 OBR 442, 504 N.E.2d 30.

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The elimination of this evidence leaves Dr. Miller's report as the only
probative evidence on the permanency of claimant's condition from
November 17, 1989 through January 1, 1990. As such, it is unnecessary to
return the cause to the commission for evidentiary enumeration. Since no
contrary result is possible, a Mitchell "remand," in this instance, will serve
no purpose.

The judgment of the court of appeals is hereby reversed and a limited
writ of mandamus is granted. Temporary total disability compensation is
ordered paid to claimant from November 17, 1989 through January 1, 1990,
but is denied from January 2, 1990 through July 18, 1990.

Judgment reversed

and limited writ granted.

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

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