State ex rel. Holman v. Longfellow Restaurant

665 N.E.2d 1123, 76 Ohio St. 3d 44
Ohio Supreme Court·Decided July 3, 1996·No. No. 95-405·Published·Cited by 15 cases

Opinion

Per Curiam.

The commission’s determination of permanent partial disability purports to include consideration of claimant’s nonmedical disability factors. The commission, however, does not seriously dispute the assertion that its award was premised solely upon medical or clinical findings that were reasonably demonstrable. One question is therefore before us: Did the commission abuse its discretion in basing its award solely upon those factors? We find no abuse of discretion for two reasons.

[46] I

R.C. 4123.57 read in part:

“The district hearing officer, upon such application, shall determine the percentage of the employee’s permanent disability * * * based upon that condition of the employee resulting from the injury or occupational disease and causing permanent impairment evidenced by medical or clinical findings reasonably demonstrable.” Former R.C. 4123.57(B), 138 Ohio Laws, Part 1,1727, 1733 (now 4123.57[A]).

This statutory passage does not resolve the question posed because it can be interpreted in different ways, as each party’s reliance on the statute attests. Claimant argues that the commission is directed to consider permanent disability. She contends that because “disability” represents the effect of injury upon the ability to work (State ex rel. Stephenson v. Indus. Comm. [1987], 31 Ohio St.3d 167, 31 OBR 369, 509 N.E.2d 946), nonmedical disability factors must be considered. The commission, on the other hand, counters by referring to the phrase “evidenced by medical or clinical findings reasonably demonstrable.” This, according to the commission, is the type of evidence on which the General Assembly wanted the award based, with medical evidence being relevant to the question of impairment.

In this instance, we find a review of the statute’s history to be particularly instructive. A statutory scheme similar to that at issue first appeared in 1941:

“In all cases of permanent partial disability * * * the industrial commission shall determine the percentage of disability of the employee, after taking into consideration the extent of the physical disability, the impairment of earning capacity and the vocational handicap of the employee * * (Emphasis added.) G.C. 1465-80(b) as amended by 119 Ohio Laws 565, 570.

Soon thereafter, the language emphasized above was deleted and the commission was directed to simply determine “the percentage of disability resulting from the injury.” 122 Ohio Laws 268, 270.

In 1955, the statute was again amended:

“The determination' of the employee’s permanent physical disability shall be based upon that pathological condition of the employee resulting from the injury and causing permanent physical impairment evidenced by medical or clinical findings reasonably demonstrable. * * * ” R.C. 4123.57(B) as amended by 126 Ohio Laws 1015,1029.

In 1959, more changes were made:

“[T]he industrial commission shall determine the percentage of disability of the employee, after taking into consideration the extent of the phsyical [sic ] disabili[47] ty, the impairment or [sic] earning capacity and the vocational handicap of the employee * * *.” (Emphasis added.) 128 Ohio Laws 743, 758.

Finally, in 1963, a version virtually the same as that which controls today was enacted. 130 Ohio Laws 926-927.

Two things are suggested by R.C. 4123.57’s many changes. At a minimum, they undermine claimant’s assertion that the General Assembly clearly intended to include nonmedical disability factors in a PPD determination. To the contrary, the conspicuous omission of nonmedical language from the statute’s final version implies that the legislature indeed intended to remove nonmedical factors from the PPD equation.

Second, mindful of the frequency with which “impairment” and “disability” have been interchanged in the past, the reference to permanent disability in this instance is insufficient to establish an intent to have nonmedical factors included. Our view is reinforced by the 1941 and 1959 versions of the statute. There, the directive to consider vocational factors would have been redundant if “disability” had been used in the sense that claimant alleges. Consideration of these variables would have been implied by the use of the term “disability.”

We cannot, therefore, find that R.C. 4123.57 compels the commission to include nonmedical disability factors in its PPD assessment.

II

We acknowledge at the outset that State ex rel. Dickey-Grabler Co. v. Indus. Comm. (1992), 63 Ohio St.3d 465, 588 N.E.2d 849, directed the commission to consider nonmedical disability factors when determining permanent partial disability. Taking this occasion to revisit that decision, we find that the foundation on which it rests does not support inclusion of these factors.

Several years prior to Dickey-Grabler, we observed:

“[A] distinct difference exists between the goals of compensation for partial disability and for permanent and total disability. Although an award for permanent and total disability is generally aimed at compensating for impairment of earning capacity, benefits for partial disability [under former R.C. 4123.57(B) ] are more akin to damages for work-related injuries.” State ex rel. Gen. Motors Corp. v. Indus. Comm. (1975), 42 Ohio St.2d 278, 282, 71 O.O.2d 255, 257, 328 N.E.2d 387, 389.

This is a principle to which we have continued to adhere. See, e.g., State ex rel. Consolidation Coal Co. v. Indus. Comm. (1980), 62 Ohio St.2d 147, 16 O.O.3d 166, 404 N.E.2d 141; State ex rel. Doughty v. Indus. Comm. (1991), 61 Ohio St.3d 736, 576 N.E.2d 801.

[48] While Gen. Motors did not address the question currently at issue, it is noteworthy for two reasons. First, its characterization of compensation for partial disability under former R.C. 4123.57(B) as akin to damages suggests a strictly medical, i.e., impairment-based award for the permanent damage to the body caused by injury. Second, it describes permanent total disability as a form of impaired earning capacity (“IEC”), and, in so doing, in effect differentiates also between former R.C. 4123.57(A) IEC and permanent partial disability as well.

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State ex rel. Holman v. Longfellow Restaurant, 665 N.E.2d 1123, 76 Ohio St. 3d 44 (Ohio 1996).

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