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

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THE STATE EX REL. WILLIAMS-LAKER, APPELLANT AND CROSS-APPELLEE, v.
INDUSTRIAL COMMISSION OF OHIO, APPELLEE AND CROSS-APPELLANT.
[Cite as State ex rel. Williams-Laker v. Indus. Comm. (1998), 80 Ohio St.3d 694.]
Workers' compensation -- Claimant may recover wage-loss compensation for
time absent from work, when.
(No. 95-1320 -- Submitted October 20, 1997 -- Decided January 14, 1998.)
APPEAL and CROSS-APPEAL from the Court of Appeals for Franklin County, No.
94APD05-709.

On July 13, 1989, appellant and cross-appellee-claimant Roberta Williams-
Laker slipped and injured her back while in the scope of her employment as a
collision body shop manager for Jim Collins Auto Body, Inc. ("Auto Body, Inc.").
Despite this injury, Williams-Laker went back to work the next day. On August
17, 1989, Williams-Laker filed a claim seeking workers' compensation benefits
for medical treatments. Auto Body, Inc. certified Williams-Laker's workers'
compensation claim for "lumbrosacral strain/sprain L5 S1 disc bulging with
associated radiculitis into the lower extremity," and the claim was approved.

On August 20, 1990, Dr. Brunner submitted a C-84 Physician's
Supplemental Report certifying Williams-Laker's temporary total disability from
July 16, 1990 to July 30, 1990. An employer follow-up questionnaire, C-62-E,
relates claimant's actual time off as being from July 23, 1990 to August 6, 1990.
This appears to be the claimant's only actual period of temporary total disability.
On May 8, 1991, Williams-Laker sought authorization to participate in a pain
control clinic, which provided for epidural and myoneural blocks and other
treatment for her injury. On September 24, 1991, Williams-Laker's request for
treatment was authorized.

The treatment was administered by the University Pain Control Center
("UPCC") and lasted from September 30, 1991 to approximately December 30,
1991. However, Williams-Laker continued receiving physical therapy until
September 1992. Williams-Laker continued to work part time during the pain
treatment at UPCC, taking Wednesdays and other extra hours off to receive
treatments. The clinic apparently did not have evening or weekend hours.

On March 4, 1993, Williams-Laker applied for wage-loss compensation
under R.C. 4123.56(B), seeking reimbursement for the salary she lost while
receiving the therapy for the July 13, 1989 injury. Williams-Laker sought lost
wages for a period from March 4, 1991 to May 31, 1992. The order of the district
hearing officer, upon which the commission ultimately relied in denying Williams-
Laker's claim for lost wages, stated:

"It is the finding of the Hearing Officer that this claim has been previously
allowed for LUMBOSACRAL STRAIN/SPRAIN.

"Claimant's application requesting wage loss compensation for the period
3-4-91 to 5-31-92, filed 3-4-93, is denied.

"The Hearing Officer finds that the claimant failed to establish any
restrictions on claimant's employment due to physical limitations imposed by the
industrial injury of 7-13-87."

Williams-Laker then filed a mandamus action with the court of appeals
alleging that the Industrial Commission's "finding that the claimant [Williams-
Laker] was not entitled to wage loss benefits is not supported by the evidence of
record and such finding constitutes an abuse of discretion." The court of appeals
granted the writ on the portion of the claim which was supported by adequate
evidence, stating:

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"[I]t is the judgment and order of this court that a writ of mandamus issue *
* * which compels the commission to vacate its order denying Ms. Williams-
Laker all wage loss compensation and which compels the commission to enter a
new order granting the compensation for the period September 30, 1991 through
December 30, 1991." Williams-Laker originally sought wage-loss compensation
from March 4, 1991 to May 31, 1992, which was denied by the commission. In
considering Williams-Laker's complaint for writ of mandamus, the appellate court
found that the commission abused its discretion by denying the wage-loss
compensation, but only for the period from September 30, 1991 to December 30,
1991. The limited period of the grant was based on the lack of medical evidence
of any treatment at the pain clinic prior to September 30, 1991 or after December
30, 1991.

This cause is now before this court upon an appeal and cross-appeal as of
right.
__________________

Becker, Reed, Tilton & Hastings and Dennis A. Becker, for appellant and
cross-appellee.

Betty D. Montgomery, Attorney General, and Melanie Cornelius, Assistant
Attorney General, for appellee and cross-appellant.
__________________

LUNDBERG STRATTON, J. In granting the writ of mandamus, the appellate
court determined that the Industrial Commission abused its discretion in failing to
award wage-loss compensation to Williams-Laker. Therefore, we must determine
whether the appellate court's issuance of the writ was proper.

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This is a case of first impression: whether an employee injured at work can
receive wage-loss compensation for time missed for medical treatments pertaining
to the workplace injury.

There are two types of workers' compensation benefits involved in this case
-- medical benefits (R.C. 4123.54), which the commission approved and
Williams-Laker has received, and wage-loss benefits (R.C. 4123.56[B]), which are
at issue in the case at bar.

The crux of Williams-Laker's argument is that she is entitled to wage-loss
benefits because her workplace injury caused her to need treatment, and in order to
attend these treatments she had to miss work because of the unavailability of the
therapy during nonworking hours. The commission argues that Williams-Laker
was medically able to work without restrictions and therefore did not suffer a
compensable wage loss.

Williams-Laker alleges that she is entitled to wage-loss benefits pursuant to
R.C. 4123.56(B), which provides:

"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 * * * [as a
percentage of his weekly wage]."

Williams-Laker cites former Ohio Adm.Code 4121-3-32(D)(2), a rule
promulgated pursuant to R.C. 4123.56(B), which allows wage-loss benefits when
"the employee returns to [her] former position but suffers a wage loss." Williams-
Laker claims that former Ohio Adm.Code 4121-3-32(D)(2) supports her claim for
wage-loss benefits because "she returned to her former position but suffered a
wage loss nonetheless." Williams-Laker acknowledges that in order to receive

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wage-loss benefits, "the claimant must show that he or she has suffered diminished
wages as a result of a medical impairment that is causally related to the industrial
injury." Williams-Laker then asserts that she unequivocally suffered a loss of
earnings due to her participation in the prescribed medical treatment for the
allowed condition.

In order to recover for wage loss, a claimant must prove actual wage loss
and causal connection to his or her injury. State ex rel. Reamer v. Indus. Comm.
(1997), 77 Ohio St.3d 450, 452, 674 N.E.2d 1384, 1385. Another prerequisite to
recover wage loss is proof that a medical inability prevents the claimant from
working or reduces the claimant's capacity to work. State ex rel. Chora v. Indus.
Comm. (1996), 74 Ohio St.3d 238, 241, 658 N.E.2d 276, 278. Therefore, if the
reason for a claimant's absence from work, or physical limitation to complete
work, is not due to "medical inability," then there is no causal connection between
the work-related injury and any time absent from work so as to justify wage-loss
compensation. See State ex rel. The Andersons v. Indus. Comm. (1992), 64 Ohio
St.3d 539, 542, 597 N.E.2d 143, 146. Accordingly, we hold that when a claimant
suffers a work-related injury, receives workers' compensation benefits therefor,
and the claimant misses work to receive prescribed, approved treatments for the
injury, that claimant may recover wage-loss compensation for the time absent from
work only if the claimant proves (1) that the treatment was medically necessary for
the claimant to perform his or her job, (2) that without the treatment he or she
could not continue to work full time, and (3) that treatment was available only
during the claimant's hours of employment.

In the case at bar, Williams-Laker missed approximately ten hours of work
per week for her treatment at UPCC between September 30, 1991 and December
30, 1991. Without question, Williams-Laker's injury was work-related and the

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commission authorized medical benefits for treatment of her injury. Further, there
is no doubt that Williams-Laker had some wage loss during her absence from
work in order to attend these treatments. In fact, her employer agreed to her
period of absence for medical treatments and did not oppose the wage-loss claim.

The issue then becomes whether the treatment was medically necessary for
her to work. The record reveals that Dr. Richard V. Gregg, Director of UPCC,
requested medical treatment for Williams-Laker on July 8, 1991, stating that "this
patient would benefit most from our outpatient therapy program." Dr. Patrick J.
Brunner, Williams-Laker's treating physician, in a letter dated September 17, 1993
verifying that he had recommended the program and that the patient benefited
significantly from it, wrote:

"Due to the available hours at the Center, without taking the patient off of
work and putting her on temporary total disability, she had to miss several hours
of work [per week]. * * *

"This treatment was recommended by me and, no doubt, has helped the
patient, since at the present time, she is able to work full time with no restrictions
and has had no loss of work. As stated above, her only other alternative would
have been to take the patient off of work full time and collect temporary/total
disability." (Emphasis added.)

Therefore, in this particular instance, a clear inference can be drawn that the
treatments were medically necessary for Williams-Laker to continue to work, and
that part-time work coupled with the treatment was the least restrictive alternative
to temporary total disability compensation.1 This result also comports with the
general policy behind temporary disability compensation of encouraging injured
employees to get back to work as soon as possible, commensurate with their
medical abilities. Savage v. Claussner Hosiery Co. (Ky.1964), 379 S.W.2d 473.

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A contrary finding would encourage greater use of temporary total status to
obtain necessary treatments and discourage employees from getting back to work.
This result would be less acceptable for employers and employees alike.

We note that this opinion should not be interpreted to allow a claimant to
voluntarily take off work to receive elective treatment and receive wage-loss
compensation for the time absent from work. Rather, on the rare occasions where
an injured worker who is prescribed treatment for a work-related injury, which is
medically necessary for the claimant to perform his or her job, without which the
claimant could not continue to work full time, and treatment is available only
during the claimant's work hours, the claimant can recover wage-loss
compensation for the time that the claimant is absent work to receive the
treatment.

Williams-Laker has established through Dr. Gregg's and Dr. Brunner's
reports that her treatments for her approved work-related injury were medically
necessary for her to be able to perform her job without limitation during the period
of her treatment at UPCC from September 30, 1991 to December 30, 1991, and
that the treatments were only available during her hours of employment.

However, Williams-Laker failed to present any adequate medical testimony
or evidence that her wage losses outside the actual period of treatment at UPCC
were medically necessary. No doctor's reports explain why she had reduced
wages before she began such treatments at UPCC. Williams-Laker must still carry
the burden of proof on all aspects of her claim. Therefore, Williams-Laker's wage-
loss compensation is limited to the time of treatment at UPCC from September 30,
1991 to December 30, 1991.

We find that the commission abused its discretion in denying wage-loss
compensation from September 30, 1991 to December 30, 1991 based on the

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evidence presented. Accordingly, we affirm the court of appeals' order granting
the writ of mandamus compelling the commission to award Williams-Laker wage-
loss compensation.
Judgment affirmed.

RESNICK and F.E. SWEENEY, JJ., concur.

DOUGLAS and PFEIFER, JJ., concur in judgment only.

MOYER, C.J., and COOK, J., dissent.
FOOTNOTE:
1.
We do not condone wage-loss compensation to a worker for taking time off
to receive treatments for a work-related injury if the treatment provider has
treatment times available that will not interfere with the claimant's work hours.
Accordingly, to facilitate review of this type of wage-loss claim, we encourage the
parties to develop the record with regard to the treatment provider's available
hours.
__________________

COOK, J., dissenting. Because I believe the commission did not abuse its
discretion in denying wage-loss compensation, I respectfully dissent. By allowing
payment of wage-loss compensation without medical evidence that absence from
work and reduced earnings are the product of a medical impairment, the majority
authorizes payment of such compensation beyond the scope of R.C. 4123.56.

The majority's allowance of wage-loss compensation for time absent from
work to receive prescribed, approved treatment may encourage injured employees
to return to work as soon as possible, but it is contrary to the statutory language
and decisional law on the subject. It ignores that wage-loss compensation, like
permanent total and temporary total disability compensation, requires a medical
impairment. State ex rel. Pepsi-Cola Bottling Co. v. Morse (1995), 72 Ohio St.3d

8

210, 215, 648 N.E.2d 827, 832; State ex rel. Liposchak v. Indus. Comm. (1995), 73
Ohio St.3d 194, 195, 652 N.E.2d 753, 755. A medical impairment does not
encompass just any medically related impediment to work -- the impediment
instead must be a "physical impairment of function" to perform work. (Emphasis
added.) State ex rel. Stephenson v. Indus. Comm. (1987), 31 Ohio St.3d 167, 171,
31 OBR 369, 373, 509 N.E.2d 946, 950. More specifically, impairment means
"the amount of a claimant's anatomical and/or mental loss of function" as
determined by medical professionals according to accepted medical and scientific
standards. Id.; State ex rel. Dallas v. Indus. Comm. (1984), 11 Ohio St.3d 193,
194, 11 OBR 504, 505, 464 N.E.2d 567, 568.
Here,
Williams-Laker
has
not
established a functional inability to
work full-time hours. Rather, the evidence shows that she worked part-time to
accommodate her doctors' schedules and to improve her injury-induced condition.
Medical therapy to improve the lasting effects of an industrial injury, where the
condition does not presently affect the claimant's performance, is not a medical
impairment for which wage-loss compensation is available.

Accordingly, the commission's decision denying this award was not an
abuse of discretion.

MOYER, C.J., concurs in the foregoing dissenting opinion.

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