Opinion
No. 88-1396
Submitted October 24, 1989
Decided February 21, 1990.
Workers' compensation — Permanent disability precludes receipt of temporary total compensation.
APPEAL from the Court of Appeals for Franklin County, No. 86AP-1145.
Appellant-claimant, Robert C. Cassity, was injured while in the course of and arising from his employment with appellee Montgomery County Sanitation Department. His workers' compensation claim was allowed by appellee Industrial Commission ("commission") and compensation and benefits followed.
After a period of claim inactivity, appellant filed a reactivation application requesting payment for past treatment, authorization for future treatment and temporary total disability compensation. A commission district hearing officer denied the application, finding "insufficient medical proof to re-open this claim or to award any Temporary Total Compensation." A regional board of review affirmed, based on "Dr. Pavalatos [ sic Pavlatos] and evidence in file."
Staff hearing officers heard appellant's appeal and issued the following order:
"The claim file is to be reset for hearing for claimant's counsel to submit Dr. Pavlatos' office notes for periods in question 12-15-82 until 7-1-84 and claimant's income tax records for 1983 and 1984 as C-19s on file for period of requested temporary total appear to reveal tremendous gaps between treatments rendered plus employer is questioning whether claimant had prior employment in California in 1983."
Following submission of the office notes and a statement from claimant's California employer verifying employment from October 3, 1983 through March 28, 1984, the staff hearing officers issued a second order. That order affirmed the regional board and stated that "* * * Dr. Pavlatos does not support the payment of temporary total compensation over the period requested * * *."
Appellant filed a complaint in mandamus in the Court of Appeals for Franklin County alleging an abuse of discretion by the commission in denying compensation. The appellate court found that Dr. Pavlatos' records revealed "some evidence" that claimant's condition had become permanent and denied compensation for temporary total disability. The court, however, also issued a limited writ on the treatment issue, directing the commission to explain why payment and authorization for treatment had been denied. The grant of this limited writ has not been appealed.
This cause is now before this court upon an appeal as of right.
Michael J. Muldoon, for appellant.
Lee C. Falke, prosecuting attorney, and John F. Krumholtz, for appellee Montgomery County Department of Sanitation.
Anthony J. Celebrezze, Jr., attorney general, and Dennis L. Hufstader, for appellee Industrial Commission.
In the case at bar, the commission denied compensation for temporary total disability. Per State, ex rel. Burley, v. Coil Packing, Inc. (1987), 31 Ohio St.3d 18, 31 OBR 70, 508 N.E.2d 936, this decision must be supported by "some evidence." Our review reveals "some evidence" supporting the denial.
In State, ex rel. Ramirez, v. Indus. Comm. (1982), 69 Ohio St.2d 630, 23 O.O. 3d 518, 433 N.E.2d 586, we held that permanent disability precludes receipt of temporary total compensation. In February 1982, Dr. Pavlatos concluded that appellant had a "poor prognosis for any improvement." We find that this assessment comports with the definition of "permanency" set forth in Vulcan Materials Co. v. Indus. Comm. (1986), 25 Ohio St.3d 31, 25 OBR 26, 494 N.E.2d 1125. There is thus "some evidence" supporting denial of compensation for temporary total disability.
For the reasons set forth above, the judgment of the court of appeals is hereby affirmed.
Judgment affirmed.
MOYER, C.J., SWEENEY, HOLMES, DOUGLAS, WRIGHT, H. BROWN and RESNICK, JJ., concur.