State ex rel. Bing v. Industrial Commission

575 N.E.2d 177, 61 Ohio St. 3d 424, 1991 Ohio LEXIS 1941

• Court: Ohio Supreme Court
• Decided: August 14, 1991
• Docket: No. 90-216
• Status: Published

Opinions

Herbert R. Brown, J.

For the reasons which follow, we vacate our earlier opinion in this case, State, ex rel. Bing, v. Indus. Comm. (1990), 55 Ohio St.3d 111, 564 N.E.2d 79, and grant a limited writ returning this matter to the commission for further proceedings consistent with this opinion.

I

In our original opinion in this case, we stated that “ * * * Bing could no longer receive temporary total [disability] compensation for this disability once the commission found that it had become permanent.” Id. at 112, 564 N.E.2d at 80. As both parties and the amici have pointed out, this is not an accurate statement of law.

R.C. 4123.52 states in pertinent part:

“ * * * The jurisdiction of the industrial commission over each case shall be continuing, and the commission may make such modification or change with respect to former findings or orders with respect thereto, as, in its opinion is justified.”

In enacting this statute, the General Assembly recognized that an employee, because of an injury or series of injuries suffered in the course of employment, may find herself, more than once in her lifetime, temporarily unable to work. Under R.C. 4123.52, the commission is vested with continuing jurisdiction to revisit a case and make later awards of temporary total disability compensation where circumstances warrant. The statute thereby ensures that all temporarily disabled workers will be provided for.¹

Accordingly, we vacate our earlier opinion and hold that even where temporary total disability compensation payments have been previously terminated, R.C. 4123.52 grants the Industrial Commission continuing jurisdiction to award temporary total disability compensation where the claimant has again become temporarily totally disabled. Applying this rule to the instant case, it is clear that the Industrial Commission erred in affirming the DHO’s order denying Bing further temporary total disability compensation on the ground that her previous award of temporary total compensation had been terminated.

II

The commission argues that, notwithstanding R.C. 4123.56(A), Bing is not entitled to further temporary total disability compensation because her hospitalization in 1987 resulted from a merely temporary “flare-up” of her “permanent” back condition, and not from any change in the overall severity of her injury.² It is the commission’s view that once a claimant has reached “maximum medical improvement” as defined by Ohio Adm.Code 4121-3-32(A)(1),³ the claimant is precluded from further temporary total disability compensation for the same injury unless she can prove that she is no longer at the point of “maximum medical improvement.”

We do not agree. Neither R.C. 4123.56(A) nor Ohio Adm.Code 4121-3-32 expressly conditions a claimant’s eligibility for later temporary total disability compensation on a finding that the claimant is no longer at the point of “maximum medical improvement.” Given that the General Assembly has mandated that the workers’ compensation statutes “ * * * shall be liberally construed in favor of employees and the dependents of deceased employees[,]” R.C. 4123.95, we are unwilling to read language into R.C. 4123.56(A) which makes it harder for claimants to qualify. A claimant who is temporarily totally disabled by a “flare-up” of an existing injury is no less unable to work — or less deserving of temporary total compensation — than a claimant who is temporarily totally disabled by a worsening of an existing injury. Accordingly, we reject the Industrial Commission’s argument.

Ill

In the instant case, the DHO’s denial of temporary total disability compensation was based on an error of law — the belief that either the doctrine of res judicata or the prior finding of permanency absolutely barred further temporary total compensation. The commission should have reviewed Bing’s application on the merits. Accordingly, we issue a limited writ directing the Industrial Commission to hear evidence and make a determination on the issue of whether appellant was temporarily totally disabled at any time after August 19, 1987.

Limited writ allowed.

Sweeney, Douglas and Resnick, JJ., concur. Moyer, C.J., Holmes and Wright, JJ., concur in part and dissent in part.

1 . An amendment to R.C. 4123.56(A), effective August 22, 1986, made explicit what was already implicit in R.C. 4123.52. The amended statute provides that “[t]he termination of temporary total disability, whether by order or otherwise, does not preclude the commencement of temporary total disability at another point in time if the employee again becomes temporarily totally disabled.” This version of R.C. 4123.56(A) is not applicable to the instant case because Bing’s original claim for temporary total disability compensation arose in 1978, before the effective date of the amendment.

2 . In State, ex rel. Ramirez, v. Indus. Comm. (1982), 69 Ohio St.2d 630, 23 0.0.3d 518, 433 N.E.2d 586, we held that the payment of temporary total disability compensation terminates when (1) the employee returns to work, (2) a treating physician certifies that the employee is capable of returning to work, or (3) the condition becomes permanent. The instant case is somewhat confused by the language used in the DHO’s 1984 opinion. Though the evidence indicated that Bing was able to return to work, the stated reason for terminating temporary total disability compensation was that her condition was “permanent,” and not because she was capable of returning to work. While Bing’s injury may be permanent in the sense that she will continue to have back troubles in the future, it is not “permanent” in the Ramirez sense because that case refers to permanent disabilities, not a permanent but non-disabling condition. See Ramirez, supra, at 634, 23 O.O.3d at 520-521, 433 N.E.2d at 589.

3 . Ohio Adm.Code 4121-3-32(A)(l) states:

“ ‘Maximum medical improvement’ is a treatment plateau (static or well-stabilized) at which no fundamental functional or physiological change can be expected within reasonable medical probability in spite of continuing medical or rehabilitative procedures. A claimant may need supportive treatment to maintain this level of function.”