State ex rel. Horne v. Great Lakes Construction Co.

480 N.E.2d 753, 18 Ohio St. 3d 79, 18 Ohio B. 117, 1985 Ohio LEXIS 510

• Court: Ohio Supreme Court
• Decided: July 3, 1985
• Docket: No. 83-1961
• Status: Published

Opinions

Per Curiam.

The issue in this case is whether appellee had a disability which prevented him from returning to his former position of employment. We hold that he had such a disability and, therefore, affirm the judgment of the court of appeals.

State, ex rel. Ramirez, v. Indus. Comm., supra, controls the determination of this case. While we recognize that Ramirez has caused some confusion in the law of workers’ compensation (such as its failure to distinguish between temporary total and temporary partial disability), we nevertheless follow Ramirez as having been recently announced as the law of Ohio. In Ramirez, we held at 632:

“* * * ‘An employee is entitled to be paid temporary total disability when injured and unable to work until one of the following three things occur: (1) he has returned to work, (2) his treating physician has made a written statement that he is capable of returning to his former position of employment, or (3) the temporary disability has become permanent.’ ” (Emphasis added.)

The phrase “and unable to work” means the workers’ compensation claimant is unable to return to his former position of employment. The phrase “former position of employment” means the position the claimant held when he was injured. We have reviewed the entire record in the case at bar, and conclude there is no evidence to show appellee is physically capable of returning to work as a truck driver. For example, Dr. Dennis B. Brooks examined appellee on June 5, 1979. Based on that examination, Dr. Brooks concluded:

“If the claimant’s [appellee’s] occupation as a truck driver is taken into consideration, then he remains temporarily and totally disabled at the present time, and will actually be permanently and totally disabled from this occupation unless reconstructive surgery is undertaken.”

Dr. David S. Postlewaite, a plastic surgeon, examined appellee on April 13, 1981. Based on this exam, Dr. Postlewaite concluded:

“If the patient [appellee] does not undergo further reconstructive surgery then he is probably not capable of employment. He certainly cannot work as a truck driver with his leg in its present condition. It is possible that with further reconstructive procedures that he would be employable possibly even as a truck driver.”

Since there is no evidence to support the Industrial Commission’s factual finding, the commission abused its discretion, and the remedy of mandamus is available to appellee. State, ex rel. Hutton, v. Indus. Comm. (1972), 29 Ohio St. 2d 9 [58 O.O.2d 66]. Therefore, the judgment of the court of appeals is affirmed.

Judgment affirmed.

Celebrezze, C.J., Sweeney, C. Brown and Douglas, JJ., concur. C. Brown, J., concurs separately. Locher, Holmes and Wright, JJ., dissent.