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

	ROMINGER LEGAL
		Ohio Court Cases and Opinions - Ohio Legal Research
					Need Legal Help?
					Need Legal Help?
LEGAL RESEARCH CENTER
LEGAL RESEARCH CENTER			LEGAL HEADLINES - CASE LAW - LEGAL FORMS	NOT FINDING WHAT YOU NEED? -RESEARCH

This court case was taken from the web sites of the Ohio Courts. Search our site for more cases - CLICK HERE

LEGAL RESEARCH

COURT REPORTERS

PRIVATE INVESTIGATORS

PROCESS SERVERS

DOCUMENT RETRIEVERS

EXPERT WITNESSES

Find a Private Investigator

Find an Expert Witness

Find a Process Server

Case Law - save on Lexis / WestLaw.

Legal News - Legal Headlines

[Cite as State ex rel. David's Cemetery v. Indus. Comm., 92 Ohio St.3d 498, 2001-Ohio-1271]

THE STATE EX REL. DAVID'S CEMETERY, APPELLANT, v. INDUSTRIAL
COMMISSION OF OHIO ET AL., APPELLEES.
[Cite as State ex rel. David's Cemetery v. Indus. Comm. (2001), 92 Ohio St.3d
498.]
Workers' compensation -- Award of temporary total disability compensation by
Industrial Commission not an abuse of discretion when supported by
"some evidence."
(No. 00-1205 -- Submitted July 17, 2001 -- Decided August 15, 2001.)
APPEAL from the Court of Appeals for Franklin County, No. 99AP-800.
__________________

Per Curiam. On June 5, 1997, appellee-claimant, Larry D. Byrge,
sustained an injury in the course of and arising from his employment with
appellant David's Cemetery. Five days later, Dr. Krisell D. Fedrizzi diagnosed an
incisional ventral hernia. In office notes of the same date, she advised claimant to
"avoid any heavy lifting and forceful pushing/pulling [until] hernia repaired."
Those restrictions were repeated in a July 18, 1997 attending physician's
questionnaire ("APQ"), which certified claimant as unable to return to any job
requiring such duties from June 10, 1997 through the "present." There is no
dispute that claimant's former position of employment entailed such duties.

Pursuant to Dr. Fedrizzi's referral, claimant saw a surgeon, Dr. Andrew H.
Gabriel, on June 12, 1997. Dr. Gabriel confirmed the diagnosis and
recommended surgery. Byrge indicated that he would seek workers'
compensation approval. On June 30, 1997, Gabriel prepared a letter apparently
for that purpose. In it, he outlined his proposed surgery and advised that "once
the procedure is performed, the patient will be off work approximately six
weeks."

SUPREME COURT OF OHIO

Claimant followed up with an application for a workers' compensation
allowance. After several delays, it was finally heard by a district hearing officer
("DHO") for appellee Industrial Commission of Ohio. In an order dated April 7,
1998, the DHO denied the claim as unrelated to employment. In so doing, the
DHO cited Gabriel's report as well as affidavits from two co-workers -- Stephen
Hopkins and William Hendricks--Hopkins claiming that four days after the
alleged injury occurred, claimant voluntarily quit.

Claimant's appeal was heard by a staff hearing officer ("SHO") on May
11, 1998. The SHO vacated the DHO's order and allowed the claim for
"incisional ventral hernia." Temporary total disability compensation ("TTC")
was ordered from June 10, 1997 through July 18, 1997, based on the reports of
Fedrizzi and Gabriel, and was to continue upon submission of medical proof.
This order was not appealed.

A June 18, 1998 letter from Gabriel to Fedrizzi indicated that claimant's
surgery had been approved and was scheduled for July 8, 1998. The letter also
indicated that claimant now also suffered from a left inguinal hernia. There was
no allegation that this latest condition was work-related.

On June 30, 1998, Fedrizzi completed a C-84 questionnaire that was to be
submitted with the claimant's request for further TTC. This form indicated that
claimant had been/would be unable to return to his former position of
employment from June 5, 1997, pending surgery. The diagnoses originally listed
were incisional ventral hernia and left inguinal hernia. The latter, however, was
then crossed out and initialed by the doctor.

Gabriel ultimately decided to repair the hernias in separate procedures. He
successfully repaired the ventral hernia on July 8, 1998, and scheduled the
remaining operation for August 14, 1998.

On September 18, 1998, David's Cemetery moved for a "retroactive
termination of temporary total disability benefits." In support, it submitted
2

January Term, 2001
Fedrizzi's C-84, statements indicating that claimant voluntarily quit, and evidence
of other employment.

A DHO heard the matter on January 15, 1999. The DHO broke the
disputed period -- June 10, 1997 through September 27, 1998 -- into five parts.
TTC from June 10, 1997 through July 18, 1997, was upheld on the basis of res
judicata. TTC from July 19, 1997 through December 20, 1997, was sustained
based on "the office notes of Dr. Fedrizzi." The DHO declared overpaid,
compensation from December 21, 1997 through July 7, 1998, because claimant,
by his own admission, worked intermittently over that time. TTC for the period
following surgery for the allowed ventral hernia -- July 8, 1998 through August
14, 1998 -- was left intact. Finally, TTC from August 15, 1998 through
September 27, 1998 -- the recovery period for claimant's nonallowed inguinal
hernia -- was found to have been overpaid.

The DHO's order, along with his accompanying reasoning, was affirmed
by an SHO on March 30, 1999. The evidence cited in support included "the
medical reports of Dr. Fedrizzi." Further appeal was refused.

David's Cemetery commenced an action in mandamus before the Court of
Appeals for Franklin County, alleging that the commission abused its discretion in
awarding TTC. The court of appeals upheld the commission's order and denied
the writ. This cause is now before this court upon an appeal as of right.

Three periods of TTC are at issue: (1) June 10, 1997 through July 18,
1997; (2) July 19, 1997 through December 20, 1997; and (3) July 8, 1998 through
August 14, 1998. Upon review, we affirm the judgment of the court of appeals as
to each.

David's Cemetery contests the commission's conclusion that the
compensation awarded over the first period was res judicata. Citing Fedrizzi's
June 30, 1998 C-84, David's Cemetery contends that the reference to a
nonallowed inguinal hernia coupled with a certification of disability post-dated to
3

SUPREME COURT OF OHIO
the date of injury suggests that the nonallowed condition contributed to claimant's
alleged temporary total disability from the claim's inception. This, per David's
Cemetery, constitutes a new and changed circumstance sufficient to warrant
reopening the matter under the commission's R.C. 4123.52 continuing
jurisdiction.

David's Cemetery is correct in naming new and changed circumstances as
a factor sufficient to invoke continuing jurisdiction. State ex rel. Cuyahoga Hts.
Bd. of Edn. v. Johnston (1979), 58 Ohio St.2d 132, 12 O.O.3d 128, 388 N.E.2d
1383. We do not concur, however, with its assertion that Fedrizzi's C-84
compelled that result. The commission is the sole evaluator of evidentiary weight
and credibility. State ex rel. Burley v. Coil Packing, Inc. (1987), 31 Ohio St.3d
18, 31 OBR 70, 508 N.E.2d 936. None of the evidence prepared
contemporaneously with claimant's injury or first period of disability (June 10,
1997 through July 18, 1997) mentioned the nonallowed inguinal hernia. To the
contrary, the first reference was in Gabriel's June 18, 1998 letter --
approximately a year later. This letter contained no allegation that the
nonallowed condition was related to claimant's industrial injury. Viewing all of
the evidence in totality, we cannot state that the commission abused its discretion
in refusing to reopen the issue of causal relationship between disability and a
nonallowed condition.

We are also unpersuaded that evidence of other employment or of
voluntary departure warranted the exercise of continuing jurisdiction. The latter
was simply evidence supplementing statements originally considered at the April
7, 1998 DHO hearing. Likewise, evidence of other employment did not merit
reconsideration, since claimant was not working over the TTC period declared res
judicata by the commission. Accordingly, we sustain the finding of res judicata.

David's Cemetery next asserts that the remaining disputed periods of TTC
are unsupported by "some evidence." We again disagree. David's Cemetery
4

January Term, 2001
engages in a semantics debate as to whether the DHO's reference to Fedrizzi's
"office notes" and the SHO's reliance on Fedrizzi's "medical reports" denote
reliance on the same medical evidence. We find it unnecessary to engage in such
a discussion, since both notes and reports from Fedrizzi support TTC from July
17, 1997 through December 20, 1997. Her June 10, 1997 office entry instructs
claimant to refrain from heavy lifting and forceful pushing/pulling until the
allowed ventral hernia was fixed. Her August 18, 1998 report confirmed that
these were indeed her restrictions over the relevant time period. Because David's
Cemetery has not alleged that claimant's former position of employment was free
from such physical duties, we hold these documents to be "some evidence"
supporting TTC over this period.

In attacking the final period of TTC at issue -- July 8, 1998 through
August 14, 1998 -- David's Cemetery again asserts a lack of "some evidence" in
support. David's Cemetery notes that the SHO based her award "upon medical
evidence finding claimant to be unable to return to his former position of
employment due to the allowed conditions in this claim," without identifying to
which evidence she was referring. David's Cemetery also notes that elsewhere in
the order, the SHO lists reliance on Fedrizzi. We agree that this ambiguity is
confusing but do not agree that, under these facts, it compels vacation of the
commission's order. Ambiguous commission orders are generally returned for
clarification. See, e.g., State ex rel. Kirschner v. Indus. Comm. (1998), 82 Ohio
St.3d 90, 694 N.E.2d 460; State ex rel. Hall v. Marion Dresser Indus., Inc. (1997),
79 Ohio St.3d 540, 684 N.E.2d 70; State ex rel. Buttolph v. Gen. Motors Corp.,
Terex Div. (1997), 79 Ohio St.3d 73, 679 N.E.2d 702; State ex rel. Buchanan v.
Indus. Comm. (1988), 40 Ohio St.3d 168, 532 N.E.2d 743; State ex rel. Mitchell v.
Robbins & Myers, Inc. (1983), 6 Ohio St.3d 481, 6 OBR 531, 453 N.E.2d 721. In
this case, however, a return for clarification of the evidence relied upon is, to us,
unnecessary, since all of the medical evidence -- including that of Dr. Steven S.
5

SUPREME COURT OF OHIO
Wunder, who examined claimant on David's Cemetery's behalf -- articulates an
approximately six-week, post-operative recovery period. See State ex rel.
Jackman v. Indus. Comm. (1995), 72 Ohio St.3d 397, 650 N.E.2d 467; State ex
rel. Gay v. Mihm (1994), 68 Ohio St.3d 315, 626 N.E.2d 666. Accordingly, we
find no abuse of discretion in the award of TTC from July 8, 1998, the date of
surgery, through August 14, 1998.

David's Cemetery issues a last broad challenge to TTC eligibility based on
claimant's employment status at various times during the disputed periods. Its
first argument focuses on the fact that claimant quit his job at David's Cemetery
after he was hurt. This argument is founded on early voluntary abandonment
cases such as State ex rel. Jones & Laughlin Steel Corp. v. Indus. Comm. (1985),
29 Ohio App.3d 145, 29 OBR 162, 504 N.E.2d 451, and State ex rel. Ashcraft v.
Indus. Comm. (1987), 34 Ohio St.3d 42, 517 N.E.2d 533 -- cases that have since
been clarified by our recent decision in State ex rel. Baker v. Indus. Comm.
(2000), 89 Ohio St.3d 376, 732 N.E.2d 355. Baker explained that the critical
abandonment in evaluating TTC eligibility was abandonment of the entire work
force, not simply abandonment of the former position of employment. This did
not occur here. Other cases cited by David's Cemetery, such as State ex rel.
Louisiana-Pacific Corp. v. Indus. Comm. (1995), 72 Ohio St.3d 401, 650 N.E.2d
469; State ex rel. McClain v. Indus. Comm. (2000), 89 Ohio St.3d 407, 732
N.E.2d 383; and State ex rel. Smith v. Superior's Brand Meats (1996), 76 Ohio
St.3d 408, 667 N.E.2d 1217, are not dispositive, because they deal with
employment discharge, not a voluntary quit.

David's Cemetery also suggests that claimant's intermittent employment
from December 21, 1997 through July 7, 1998, precludes TTC thereafter. This is
incorrect. Claimant's employment, even if sporadic, indeed bars TTC over the
period in which he was employed. State ex rel. Blabac v. Indus. Comm. (1999),
87 Ohio St.3d 113, 717 N.E.2d 336. It does not, however, foreclose TTC should
6

January Term, 2001
claimant again become temporarily and totally disabled, which clearly occurred
during claimant's post-surgical recovery. State ex rel. Bing v. Indus. Comm.
(1991), 61 Ohio St.3d 424, 575 N.E.2d 177.

For the reasons cited above, the judgment of the court of appeals is hereby
affirmed.
Judgment affirmed.

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

Pickrel, Schaeffer & Ebeling, David C. Korte and Michelle D. Bach, for
appellant.

Betty D. Montgomery, Attorney General, and Stephen D. Plymale,
Assistant Attorney General, for appellee Industrial Commission.

Hochman & Roach Co., L.P.A., Gary D. Plunkett and Roger A. Lee, for
appellee Byrge.
__________________

7