Opinion
No. 90-1924
Submitted November 5, 1991 —
Decided February 5, 1992.
APPEAL from the Court of Appeals for Franklin County, No. 89AP-54.
Appellee-claimant, Patricia Abner, sustained a lumbosacral sprain on August 12, 1983 while working for appellant ARA Services, Inc. Appellant Industrial Commission allowed her claim and awarded temporary total disability compensation from August 26, 1983 through September 25, 1983.
Claimant was in an automobile accident on November 10, 1983. She was diagnosed as having a cervical strain.
In September 1985, claimant filed a C-85-A claim reactivation form with the commission, seeking, among other things, temporary total disability compensation from October 28, 1983 through November 9, 1983, from January 9, 1984 through March 12, 1984, and from November 1, 1984 through approximately June 1, 1985. Dr. Joseph Garland, who completed the physician's portion of the form, attributed claimant's temporary total disability from November 1, 1984 through June 1, 1985 to lumbosacral strain. Earlier disability periods were certified by Doctors Braunlin and West.
By a decision dated on December 16, 1985, a commission district hearing officer denied claimant's C-85-A application to reactivate her claim "for the reason that claimant was in a severe intervening accident, an automobile wreck, on November 10, 1983." On appeal, by a decision dated May 29, 1986, the Dayton Regional Board of Review modified the district hearing officer's order, allowed claimant's C-85-A, awarded temporary total disability compensation from October 28, 1983 through November 9, 1983, and referred claimant "to an independent orthopedist as to whether or not claimant is temporarily totally disabled for low back." The board of review further ordered that, following the medical examination, the claim was to be reset for a hearing before a district hearing officer on claimant's entitlement to temporary total disability compensation subsequent to January 9, 1984. The employer appealed. However, staff hearing officers affirmed the board's order.
On November 3, 1987, claimant was examined on the commission's behalf by Dr. Ronald J. Moser. Dr. Moser concluded that claimant's allowed conditions prevented her from returning to her former position of employment. He also felt that claimant's impairment had become permanent and that maximum recovery had been reached.
In early 1988, pursuant to the earlier order of the Dayton Regional Board of Review, claimant's temporary total disability request for the period from January 9, 1984 through March 12, 1984 and thereafter was reheard. A district hearing officer denied compensation, stating:
"The Hearing Officer finds that there is no basis for the award of any Temporary Total Disability Compensation for the period of 1-9-84 to 3-12-84 or for any period thereafter. The Hearing Officer further finds that Claimant is not temporarily and totally disabled as per report of Dr. Ronald J. Moser, M.D. for the reason that Claimant's condition is permanent and Claimant has reached maximum medical recovery. The Hearing Officer further finds that Claimant's condition became permanent as of the auto wreck she had on 11-9-83 [ sic]."
This last order was administratively affirmed.
On January 11, 1989, claimant filed a complaint in mandamus in the Court of Appeals for Franklin County, alleging that the commission abused its discretion in denying the requested temporary total disability compensation. The court of appeals found no evidence supporting the commission's stated basis for denying compensation and vacated the order. It then directed the commission to conduct further proceedings on claimant's entitlement to temporary total disability compensation for the period beginning January 9, 1984. The court also directed the commission to issue an order explaining its decision to either grant or deny benefits.
This cause is now before this court upon an appeal as of right.
Daniel J. Gattermeyer, for appellee.
Lee I. Fisher, Attorney General, and Jetta Mencer, for appellants Industrial Commission and Administrator.
We are again asked to review the commission's order for "some evidence" supporting its decision. For the reasons which follow, we affirm the judgment below.
The commission's exclusive focus on perceived deficiencies in claimant's medical evidence is misdirected. The commission mistakenly believes, as stated in its brief to this court, that temporary total disability compensation was denied because claimant did not "provide probative and substantial evidence in support of her claim." This is not, however, what the order said. The order stated that temporary total disability compensation was denied because claimant's disability had become permanent, which, per State, ex rel. Ramirez, v. Indus. Comm. (1982), 69 Ohio St.2d 630, 23 O.O.3d 518, 433 N.E.2d 586, precludes temporary total disability compensation.
No evidence supports the commission's reasoning. The district hearing officer, relying on Dr. Moser's report, found that claimant's condition became permanent as of her November 1983 auto accident. Dr. Moser, however, did not examine claimant until November 3, 1987. Thus, his opinion as to the permanency of claimant's condition prior to that time is not probative. Accordingly, there is no evidence supporting the commission's order.
The lack of "some evidence" supporting the denial of compensation, however, is not automatically "some evidence" supporting an award. State, ex rel. Lampkins, v. Dayton Malleable, Inc. (1989), 45 Ohio St.3d 14, 16-17, 542 N.E.2d 1105, 1108. We, therefore, affirm the judgment of the court of appeals which directed the commission to redetermine claimant's entitlement to temporary total disability compensation over the period in question. If the claimant's medical evidence is indeed insufficient to support a compensation award, the commission order should specifically so state, and explain why it found the medical evidence inadequate.
Judgment affirmed.
MOYER, C.J., SWEENEY, HOLMES, DOUGLAS, WRIGHT, H. BROWN and RESNICK, JJ., concur.