State ex rel. Apcompower, Inc. v. Industrial Commission

842 N.E.2d 498, 108 Ohio St. 3d 196
CourtOhio Supreme Court
DecidedMarch 1, 2006
DocketNo. 2004-1896
StatusPublished

This text of 842 N.E.2d 498 (State ex rel. Apcompower, Inc. v. Industrial Commission) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. Apcompower, Inc. v. Industrial Commission, 842 N.E.2d 498, 108 Ohio St. 3d 196 (Ohio 2006).

Opinion

Per Curiam.

{¶ 1} In this appeal, the employer objects to the payment of temporary total disability compensation.,,

{¶ 2} John W. Martin has an allowed workers’ compensation claim stemming from a May 10, 2000 industrial accident in the course of his employment with appellant, Apcompower, Inc. Temporary total disability compensation was or[197]*197dered from May 24, 2000, through September 27, 2000, to continue upon submission of medical proof.

{¶ 3} Apcompower exercised its right to have Martin examined by a physician of its choosing and scheduled Martin for an appointment. Martin did not attend the examinations that Apcompower had scheduled. The failure to attend prompted Apcompower to ask appellee Industrial Commission of Ohio, pursuant to R.C. 4123.651(C), to suspend all activity in Martin’s claim until he attended an examination. The commission granted that request on August 20, 2001.

{¶ 4} Martin notified the Bureau of Workers’ Compensation that Apcompower had sent the examination notices to the wrong address and that he had not received notice of any of the appointments. Thereafter, Apcompower scheduled — and Martin attended — an evaluation with Dr. Stephen T. Autry on March 8, 2002. Dr. Autry opined that Martin had attained maximum medical improvement. In June 2002, Apcompower sought a review of Dr. Autry’s analysis from a Dr. Gibson, who concluded that through May 9, 2002, Martin’s disability appeared to be related to the industrial injury.

{¶ 5} Martin’s cooperation lifted his claim suspension. The examination also prompted Apcompower’s motion to determine the extent of Martin’s disability.

{¶ 6} A commission district hearing officer found that Martin’s condition was temporary and prevented him from returning to his former position of employment. The decision was based on a report by Martin’s new physician, Dr. Thomas Herbst.

{¶ 7} On December 23, 2002, a staff hearing officer, on appeal, found:

{¶ 8} “[T]he injured worker has been unable to return to and perform the duties of his former position of employment for the period 8/14/01 to the present date as a result of the allowed conditions in this claim. Therefore, temporary total compensation has been properly paid for this period based on the medical reports of Dr. Gibson and Dr. Herbst.
{¶ 9} “The Staff Hearing Officer further finds that the injured worker has reached maximum medical improvement for the allowed conditions in this claim. Therefore, temporary total compensation is ordered terminated on that basis effective the date of this hearing, 12/23/02, based on the medical report of Dr. Autry.”

{¶ 10} Apcompower objected that the date of termination of temporary total disability compensation was without evidentiary support, but further appeal was denied.

{¶ 11} On July 15, 2003, Apcompower filed a complaint in mandamus in the Court of Appeals for Franklin County. The court of appeals found problems with [198]*198the evidence on which the commission relied and ordered the commission to reconsider its order.

{¶ 12} This cause is now before this court on an appeal as of right.

{¶ 13} At issue is payment of temporary total disability compensation from August 14, 2001, through December 23, 2002. Apcompower objects to payment, arguing that (1) temporary total disability compensation is improper per se from August 20, 2001, through March 8, 2002, the period of claim suspension, and (2) in any event, no evidence supports payment beyond the March 8, 2002 date of Dr. Autry’s examination. Upon review, we agree with the court of appeals’ analysis and affirm its judgment.

{¶ 14} Regarding the first issue, R.C. 4123.651(C) reads:

{¶ 15} “If, without good cause, an employee refuses to submit to any examination scheduled under this section * * * his right to have his claim for compensation or benefits considered * * * or to receive any payment for compensation or benefits previously granted, is suspended during the period of refusal.”

{¶ 16} The statute raises a single question in this case: Does R.C. 4123.651(C) demand permanent compensation forfeiture over any period in which the statute has been invoked?

{¶ 17} Controversy centers on the word “suspend,” a term undefined by R.C. Chapter 4123. Apcompower asserts that the term connotes a permanent compensation forfeiture, relying on a standard dictionary definition that actually hinders, not helps, its cause, by using equivalents such as “temporarily delay” and “interrupt.”

{¶ 18} The commission stresses that, lacking a statutory definition for “suspend,” R.C. 4123.95 demands that the term be liberally construed in Martin’s favor. The commission also argues that the General Assembly, when it wishes to permanently bar compensation for a given period, knows how to clearly express that intent. A review of compensation statutes supports this assertion.

{¶ 19} R.C. 4123.54(B), for example, expressly states that compensation or benefits “are not payable” to an incarcerated claimant. R.C. 4123.55 directs, “No compensation shall be allowed for the first week after an injury is received or occupational disease contracted and no compensation shall be allowed for the first week of total disability whenever it may occur * * *.” (Emphasis added.)

{¶ 20} R.C. 4123.56 through 4123.59 have passages of comparable clarity. Temporary total disability compensation payment “shall not be made for the period when any employee has returned to work.” (Emphasis added.) R.C. 4123.56(A). The death-benefit provisions of R.C. 4123.59(B)(1) make abundantly clear that after a dependent spouse remarries, a lump sum will be paid, and thereafter, “no further compensation shall be paid to such spouse.” R.C. 4123.57 [199]*199has several similar directives. For example, “in no instance shall the former [partial disability compensation] award be modified unless * * * the condition of the claimant * * * has so progressed as to have increased the percentage of permanent partial disability.” R.C. 4123.57(A). Similarly, “[n]o award shall be made under this division based upon a percentage of disability which, when taken with all other percentages of permanent disability, exceeds one hundred percent.” Id. Finally, as to scheduled-loss awards for vision and hearing, “in no case shall an award of compensation be made for less than” a designated amount of disability. R.C. 4123.57(B).

{¶ 21} These provisions demonstrate the General Assembly’s ability to unreservedly articulate an intention to bar the payment of compensation over a given period. R.C. 4123.651(C)’s language does not evince such an intent.

{¶ 22} Apcompower’s additional reliance on R.C. 4123.53(C) and Ohio Adm. Code 4121-3-12 is misplaced. The statute provides that if the claimant “refuses” to submit to a bureau- or a commission-ordered exam, “any payment for compensation theretofore granted, is suspended during the period of the refusal or obstruction.” (Emphasis added.) This statute is off point for two reasons. First, there was no bureau- or commission-ordered exam at issue. This exam was an employer-scheduled evaluation. This fact distinguishes Ohio Adm.Code 4121-3-12 as well. Second, there was no refusal or obstruction here.

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Bluebook (online)
842 N.E.2d 498, 108 Ohio St. 3d 196, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-apcompower-inc-v-industrial-commission-ohio-2006.