Opinion
No. 86-1030
Decided February 24, 1988.
Workers' compensation — Some evidence that claimant's condition has become permanent exists, when.
APPEAL from the Court of Appeals for Franklin County.
On October 31, 1978, appellee, Wilma J. Eldridge, sustained an injury to her low back in the course of her employment with Central Aluminum Company. Appellee timely filed a workers' compensation claim which was recognized for "severe back strain." Pursuant to this finding, appellee was awarded temporary total disability compensation and, as of November 1983, had received over two hundred weeks of such compensation.
Throughout this period, appellee sought regular medical attention and was hospitalized for recurring back problems. Appellee's back condition did not respond to treatment primarily due to severe obesity which not only aggravated her condition, but also prevented her from being considered a good candidate for surgery. Appellee was able to return to her former employment for approximately one year after receiving chemical injections in Canada, but her low back discomfort eventually returned and forced her to leave work.
On July 2, 1981, appellee sought assistance from the Rehabilitation Division of the Industrial Commission. The division initially recommended that she participate in the weight-loss program provided at Mt. Carmel Hospital Nutritional Center. Her treating physician, Dr. Bruce E. Siegel, speculated that a weight loss of one hundred thirty to one hundred forty pounds could eliminate the need for spinal surgery. However, appellee missed several scheduled appointments due to illness and her continuing back condition.
In January 1982, appellee entered into an amended plan with the Rehabilitation Division in which she agreed to participate in a Pain and Stress Management Program offered at Miami Valley Hospital. Again, appellee's low back condition prevented her from participating in this program, and after a series of cancelled appointments, appellee and the Rehabilitation Division agreed that her file should be closed.
On November 1, 1983, Dr. Drew J. Arnold examined relator to determine if her disability had become permanent and concluded that she suffered from a "low degree of impairment" which was "probably approaching a permanent situation."
On January 13, 1984, a hearing was held to determine the extent of relator's disability. The staff hearing officer scheduled appellee for an examination to determine whether the temporary disability had become permanent. On March 21, 1984, appellee was examined by Dr. Martin K. Moyes who concluded as follows:
"In my opinion, the claimant is not substantially able to perform her job duties as a saw operator. The claimant is temporarily permanently [ sic] unable to return to her former position of employment. State of impairment is mild, low back pain with L4-5 herniated nucleus pulposus.
"In my opinion, the present impairment is due to the injury, with a definite percentage — low moderate — of 25 to 40%, injury to her back and radicular damage to her left lower extremity. It is felt she has reached maximum recovery after this period of time. The alleged injury was on 10/31/78, but the patient may possibly be able to receive vocational rehabilitation since she does have a high school education and could possibly be placed in another type of position, with which she may gainfully be employed."
On May 29, 1984, a second hearing was held to determine the extent of appellee's disability. On August 2, 1984, the hearing officer terminated appellee's receipt of temporary total disability compensation on the grounds that Dr. Moyes' examination indicated that the claimant had reached maximum recovery after this period of time. The hearing officer stated that Dr. Moyes' report constituted evidence "that the level of disability has become permanent (at least the inability to perform her prior job duties)." The hearing officer further indicated that during the hearing, appellee was given thirty days in which to submit a narrative report of her treating physician, Dr. Siegel, but no such report had been received as of June 18, 1984.
On July 14, 1984, Dr. Siegel stated, in a letter filed with the commission, that appellee's condition had not completely stabilized, that her condition was not permanent, and that she was temporarily and totally disabled at that time. Dr. Siegel proposed that appellee's continued weight loss, which at the time was fifteen pounds, therapy and some rest could possibly alleviate her condition and negate the need for any corrective surgery.
On October 25, 1984, the Columbus Regional Board of Review affirmed the order of the district hearing officer and a subsequent appeal to the Industrial Commission was refused.
Appellee initiated this action in mandamus in the court of appeals seeking an order directing the commission to find that she was entitled to receive temporary and total disability compensation. On May 8, 1986, the court of appeals granted the writ and ordered the commission to continue payment of temporary total disability compensation to appellee until such time as the evidence before the commission properly supported a finding that her condition had become permanent.
The cause is now before this court on an appeal as of right.
Stewart R. Jaffy Associates Co., L.P.A., and Thomas Sico, for appellee.
Anthony J. Celebrezze, Jr., attorney general, and Michael L. Squillace, for appellant Industrial Commission.
Appellant submits that the appellate court's judgment was rendered without benefit of this court's recent decision in Vulcan Materials Co. v. Indus. Comm. (1986), 25 Ohio St.3d 31, 25 OBR 26, 494 N.E.2d 1125. In Vulcan, this court provided some insight as to the type of evidence which is necessary to establish that an injury has become a permanent condition. The court stated at 33, 25 OBR at 27, 494 N.E.2d at 1127:
"* * * The commission's designation of a disability as permanent relates solely to the perceived longevity of the condition at issue. It has absolutely no bearing upon the claimant's inability to perform the tasks involved in his former position of employment. * * *"
The appellate court concluded that Dr. Moyes' report did not constitute "some evidence" upon which the commission could base its finding of permanent disability. The court focused primarily upon that portion of Dr. Moyes' report which found that the claimant was "temporarily permanently [ sic] unable to return to her former position of employment." The appellate court viewed this phrase as being "ambiguous" and "confusing" and held that it would be manifestly unjust for the Industrial Commission to rely on such evidence to support its finding of permanent disability.
While the appellate court's conclusion as to the reliability of the ambiguous terminology used in Dr. Moyes' report appears well-founded, a review of the commission's order demonstrates that the commission premised its finding upon a segment of Dr. Moyes' report different from that scrutinized by the appellate court. Dr. Moyes' report sets forth two distinct observations in two separate paragraphs. The first observation concerns appellee's inability to return to her former position of employment. This is where Dr. Moyes employs his ambiguous terminology. However, in the next paragraph of the report, Dr. Moyes expresses his opinion as to whether the claimant's condition had become permanent. There, Dr. Moyes indicates that the claimant had reached "maximum recovery after this period of time." This is the language which the commission quotes in support of its finding and, pursuant to this court's judgment in Vulcan Materials Co., supra, this statement constitutes some evidence that the claimant's condition had become permanent.
For the reasons set forth in this opinion, we find that the appellate court's decision to negate the commission's factual finding of permanent disability is not well-founded and we reverse the judgment of the appellate court.
Judgment reversed.
LOCHER, HOLMES, WRIGHT and H. BROWN, JJ., concur.
SWEENEY and DOUGLAS, JJ., dissent.
MOYER, C.J., not participating.