THE STATE EX REL. KROGER COMPANY, APPELLANT, v. INDUSTRIAL COMMISSION OF
OHIO, APPELLEE.
[Cite as State ex rel. Kroger Co. v. Indus. Comm. (1997), 80 Ohio St.3d 483.]
Workers’ compensation — Award of temporary total disability compensation by
Industrial Commission not an abuse of discretion, when.
(No. 95-901 — Submitted October 7, 1997 — Decided December 31, 1997.)
APPEAL from the Court of Appeals for Franklin County, No. 94APD03-422.
Claimant, Wilma C. Williamson, was industrially injured in 1989 while
working for appellant, Kroger Company. She related the following description of
her injury to a medical examiner:
“She said she was injured while in a meat cooler. The electricity went out
and she fells [sic] backwards with some boxes falling around her. She injured her
low back and right shoulder. I asked her if she was scared at the time. ‘Yea, I got
scared because it was dark and I couldn’t find my way out. It took me a while.
The fire alarm went off and I thought maybe there was a fire in the store and I was
locked in there. The door locked after you went in and you had to hit this thing in
the center of the door to open it.’ ”
Her workers’ compensation claim was ultimately allowed for “lumbosacral
strain; cervical strain; anxiety disorder with panic attacks.” In 1992, claimant
applied for temporary total disability compensation from June 10, 1991 and to
continue. She accompanied her motion with a November 6, 1991 C-84
“physician’s report supplemental” from Dr. Marguerite M. Blythe, her treating
psychiatrist. Under the heading “Present complaints and condition(s),” Dr. Blythe
listed “Post Traumatic Stress Disorder (Secondary to Industrial Accident), Panic
Attacks, Dysthymia.” Objective findings were noted as “Poor sleep, panic attacks
and nightmares.” Subjectively, she found “feelings of impending doom, terror of small spaces such as elevators.” Dr. Blythe stated that claimant’s recovery had
been delayed because of claimant’s inability to tolerate higher doses of
medication. An estimated return to work date was given as “possibly 12/92[,] no
predicted date.”
Dr. Blythe submitted two more C-84’s in addition to four narratives. Her
December 11, 1992 C-84 estimated a January 1, 1994 return to work date.
Complaints were listed as “anxiety, trouble leaving house, fear of elevators,
[decreased] sleep.” A decreased ability to cope, weight loss, depression, and
nerves were also noted. A July 1, 1993 C-84 extended claimant’s disability to
June 1994, based on “flashbacks, panic, nervousness, [and] trouble sleeping.”
Dr. Blythe’s narratives are also significant. On September 13, 1991, she
wrote:
“She [claimant] had no fear of anything prior to the accident. Apparently on
the day of the accident in addition to the falling objects there had been failure of
the electricity, a fire bell had gone off, she had gone back into the Kroger Building
and the lights had gone on and then off and she had been terrified in addition to
being physically injured.
“Since the time of the accident she has been afraid of elevators and small
spaces. She has been afraid of driving on expressways. She has been afraid of
doing something that will cause other people harm. I believe that these fears and
phobias are directly related to the accident and to the trauma she encountered both
in being in a darkened building and having boxes fall on her, and having a fire bell
go off that she didn’t know was real or not real, and in her fear of not being able to
get out of the industrial situation at the time that it occurred.
“* * *
2 “My current working diagnosis of Mrs. Williamson is that she has a
generalize[d] anxiety disorder with panic attacks. I believe that both of these
problems were caused by the accident which she sustained when working at
Kroger on June 5, 1989. I believe that her psychiatric condition is a direct result
of her industrial accident and that it is not an exacerbation or an aggravation of a
pre-existing condition. I do not believe she had any psychiatric condition prior to
the accident.
“I believe that Mrs. Williamson has some disability from the panic attacks
and the generalized anxiety disorder. This mostly shows itself as being afraid to
be in small spaces, such as elevators. This fear is so severe that she will walk up
eight or ten flights of stairs rather than take an elevator. In addition, she avoids
driving on the expressways and places where there are loud noises and sudden
changes. I believe that this interferes with her ability to function and that it would
also affect her return to work, in that she has problems in dealing with sudden
changes, which is required in most jobs.”
Three weeks later, on October 6, 1991, Dr. Blythe stated:
“Ms[.] Williamson had no psychiatric history, prior to her industrial
accident at Kroger June 5th[,] 1989. At that time, because of a combination of
being/feeling trapped, lights going off in the building, and fear/smell/sounds of
possible fire (fire bell went off), Ms[.] Williamson was terrified. Since that time
she has had problems with nightmares, panic when in small, confined spaces,
depression, as well as the back pain for which she was treated.
“My best diagnosis is that Ms[.] Williamson suffers from Post Traumatic
Stress Disorder and Panic attacks, both directly related to the industrial accident.
In addition, she has dysthymia (chronic depression) from the duration of time her
problems have gone on. These psychiatric illnesses significantly impair her daily
3 functioning. For example, she cannot take elevators because of her fear of the
small spaces after being locked/confined in the refrigerator at Kroger. She sleeps
badly and often wakes up many times in the night (something which wasn’t [t]rue
before the accident), leaving it difficult for her to function the next day. She is
chronically tired, fearful, and at times has such panic attacks she is afraid she is
going to die immediately.
“* * * I feel she is fairly seriously impaired from her psychiatric illnesses
and given the period this has lasted, has a somewhat guarded prognosis for this
resolving itself, either with treatment or spontaneously.”
Approximately a year later, Dr. Blythe reported:
“Ms[.] Williamson is currently being treated for anxiety disorder with panic
attacks. The current addition of the American Psychiatric Association’s
Diagnostic and Statistical Manual of Mental Disorders, Revised 3rd Edition
(DSM-III-R) breaks these two conditions into two separate diagnostic categories,
300.01 and 300.02. * * *
“Concerning Generalized Anxiety Disorder, Ms[.] Williamson never was
particularly anxious about anything prior to her experience at Kroger in June 1989.
She now has unrealistic fears about her family * * *. She has unrealistic worries
about her health * * *. She does have some anxieties related to Panic * * * but not
only ones related to that, which is why I have given her both diagnoses. I do not
believe her to be psychotic nor do I believe the anxiety to be part of a depression.
***
“At times in the past she has had specific panic attacks, albeit not often
enough to merit naming Panic Attacks [as] a primary diagnosis. That is, she does
not have at present one attack a week; however, by history she did in 1989 and
4 probably did shortly before I met her in June 1991. Initially these came ‘out of the
blue’ and for no reason * * * then she started thinking that certain stimuli caused
them[,] such as thinking about going into a[n] elevator. Technically, being afraid
of single things is more related to Phobias * * * which Ms[.] Williamson may also
have had occur since her accident. However, the intensity of the panic * * *
happens suddenly and more accurately describes ‘Panic’ than Phobia * * * though
going into closed spaces can now evoke such panic. This may be the start of
agoraphobia[,] since that is how people start avoiding p[l]aces they * * *
mistakenly associate with Panic (and how agoraphobia is believed to start) but I
did not feel she in any other way meets either the diagnosis of agoraphobia or of
simple phobia. * * * Because of this I said she had ‘anxiety with Panic attacks.’
[T]echnically, there is no DSM-IIIR diagnosis for Panic attacks used simply as a
symptom. I suppose she could be called Post Traumatic Stress Disorder * * *
since she has recurrent intrusive recollections of the accident, as well as dreams
about it; she avoids things that remind her of the accident, such as elevators,
memories of the accident and feels detached from her surroundings as evidenced
by the fact she has taken less pleasure in her grandchildren than she expected, and
has sleep problems, irritability, difficulty concentrating which has lasted more than
one mo[n]th. I did not call her disorder Post Traumatic Stress as I do not believe
her accident was caused by ‘an event that is outside the range of human
experience.’ Some diagnosticians now argue that this is not necessary for this
diagnosis. * * *
“Nevertheless, I believe Ms[.] Williamson has a fairly severe form of
anxiety, which permeates all aspects of h[e]r life, and is afraid to do some things
for fear she will have a panic attack or a nightmare. This has markedly curtailed
her pleasure in life and her ability to function. Whether one calls this Anxiety
5 with Panic Symptoms, or Post Traumatic Stress Disorder, or Anxiety with Panic
and stress induced phobias, I believe Ms. Williamson’s anxiety markedly disturbs
her ability to function. * * *”
Finally, in a lengthy December 31, 1993 report, Dr. Blythe indicated:
“While the DSM-IIIR would say that PTSD [post-traumatic stress disorder]
is caused by ‘extraordinary events,’ such as war or explosions that cause dozens of
injuries, most psychiatrists now believe that PTSD does not require an
‘extraordinary’ event, to be caused, but that a very frightening one, such as
explosion or a rape, can cause it * * * especially when such an explosion also
inflicts injury to the individual as a person * * * that is, affects the person’s sense
of self and sense of self-determination. While Ms[.] Williamson did not suffer
serious breaks of bones or burns, the emotional situation that occurred at Kroger
was of the same sort that happens to people who are in serious accidents and who
come close to dying. This patient had no previous psychiatric problems prior to
the experience which I believe caused the PTSD. The patient now has many signs
and symptoms which are similar to those of Viet Nam Veterans who are diagnosed
as having PTSD * * *.
“When the patient has had bad dreams, fears and flashbacks, she has tried at
times in the past to avoid having them by ‘pretending everything is OK.’ She still
is terrified of small spaces such as elevators * * *. Any report of similar instances
on radio or TV exacerbates her fears of what almost happened to her and what did
happen to her and again makes her fear for her family.
“The patient’s interest in her own life (and that of the family) was
significantly diminished after the incident * * *. She couldn’t do things she
enjoyed before. She felt cheated out of the way the life was ‘supposed’ to be lived
6 by how she was having to live it. * * * She couldn’t do normal things * * *. She
felt estranged from other people because she ‘wasn’t being normal.’ She was quite
hopeless about life for a period of time. This hopelessness was not (and now is
not) her usual affect, but the depression still happens. The patient has some severe
flashbacks, bad dreams, terror, and self-defeating behaviors * * * such as being
unable to get out of the house to come to appointments.
“The duration of her problem is over four years * * * though the definition
of PTSD requires it to be more than one month * * * and it still persists though it
is, unfortunately, no less serious now than it was when I met her in 1991, two
years after the accident. It is not now accompanied by totally incapacitating
depression. However, significant, and very unpredictable impairment has
occurred since 1989, according to Dr[.] Lerner’s records, and definitely since I
have known her * * * with a few hours being OK and then days or weeks of things
being terrible and then things being OK again briefly for a few hours or a day.
The patient never experiences long periods of being well * * * of not having
symptoms of anxiety, panic, phobias and PTSD * * * and even the periods of
‘better times’ are marred by an unpredictability that makes planning for the future
difficult. The fact that this continues after four and half years makes my prognosis
quite guarded. I would have expected that if she were going to be over her
problems, she would be by now * * * and she isn’t.
“I have treated this patient for an anxiety disorder with panic attacks. The
current DSM-IIIR breaks these symptoms into two diagnoses, that of Panic
Disorder 300.01, and Generalized Anxiety Disorder 300.02. I also believe, and I
have believed since I met her, that she has Post Traumatic Stress Disorder (PTSD)
309.89. It is not at all uncommon for patients to have symptoms that cross specific
7 diagnostic categories, but all her symptoms fall into the anxiety/fearfulness
category. She is significantly disabled from her psychological problems. That is,
her problems are causing her significant disturbance in her personal relationships,
her ability to work and her personal enjoyment of life. Based on what has
happened in the past two and half years I have known her, I believe her condition
will not improve and that she needs to be considered disabled. * * *”
A district hearing officer of appellee, Industrial Commission of Ohio,
awarded temporary total disability compensation:
“* * * [F]rom 7/18/91 to 1/1/94. * * *
“It is the order of the Hearing Officer that further temporary total disability
compensation is to be paid upon submission of medical evidence which
documents the claimant’s continued inability to return to and perform the duties of
her former position of employment as a result of the allowed conditions in this
claim.
“The Hearing Officer finds that the claimant’s condition remains temporary.
The claimant has not reached maximum medical improvement and the claimant’s
condition has not become permanent.
“The Hearing Officer further finds that the claimant remains unable to
return to and perform the duties of her former position of employment as a Deli
Clerk as a result of this industrial injury.
“Temporary Total Disability Compensation is continued upon submission of
medical proof documenting Claimant’s inability to return to her former place of
employment.
“This order is based upon the medical reports of Dr. Blythe, the evidence in
the file and the evidence adduced at hearing.”
8 The order was administratively affirmed.
Kroger filed a complaint in mandamus in the Court of Appeals for Franklin
County, alleging that the commission abused its discretion in awarding claimant
temporary total disability compensation. Finding Dr. Blythe’s medical reports to
be “some evidence” in support of the commission’s determination, the court of
appeals denied the writ.
This cause is now before this court upon an appeal as of right.
__________________
Porter, Wright, Morris & Arthur, Karl J. Sutter and Charles J. Kurtz II, for
appellant.
Betty D. Montgomery, Attorney General, and William L. McDonald,
Assistant Attorney General, for appellee.
John L. Berg, for Wilma C. Williamson.
Per Curiam. Kroger challenges the award of temporary total disability
compensation from July 18, 1991 to January 1, 1994, and gives two reasons why it
should be set aside. Neither has merit.
Kroger’s first argument asserts that claimant has reached
permanency/maximum medical improvement (“MMI”), a finding of which bars
temporary total disability compensation. R.C. 4123.56(A); State ex rel. Ramirez v.
Indus. Comm. (1982), 69 Ohio St.2d 630, 23 O.O.3d 518, 433 N.E.2d 586; Vulcan
Materials Co. v. Indus. Comm. (1986), 25 Ohio St.3d 31, 25 OBR 26, 494 N.E.2d
1125. Kroger initially claims that the return-to-work dates on Dr. Blythe’s C-84’s
are so “distant [and] unrealistic” as to compel a finding of MMI.
The commission’s broad evidentiary powers certainly permit it to discount a
C-84 on the basis alleged by Kroger. In this case, however, the estimated return-
9 to-work dates offered by Dr. Blythe were only eleven to twelve months distant.
This is not unreasonable or unrealistic, nor is it uncommon.
Kroger also cites Dr. Blythe’s October 6, 1991 assessment of a “somewhat
guarded prognosis” as evidence of MMI. While this is language that would
support an MMI finding (see State ex rel. Cassity v. Montgomery Cty. Dept. of
Sanitation [1990], 49 Ohio St.3d 47, 550 N.E.2d 474), it does not compel it.
“Somewhat guarded prognosis” can be interpreted two ways. As Cassity
shows, it can be read in favor of MMI. However, it can also suggest that
improvement, while unlikely, has not been ruled out. In State ex rel. Copeland
Corp. v. Indus. Comm. (1990), 53 Ohio St.3d 238, 559 N.E.2d 1310, we discussed
a doctor’s report that could be construed as either supporting or negating MMI:
“In the case before us, Dr. Braunlin stated in his report of September 17,
1986:
“ ‘I feel that he [claimant] has likely reached maximal recovery unless he
attends a chronic pain and stress center which I feel might be quite helpful in
dealing with the multitude of problems of which he still complains. * * * Unless
additional improvement is made in a rehabilitation type program, I feel that he has
likely reached maximal recovery.’
“Dr. Braunlin’s comments are susceptible [of] differing interpretations.
Given his suggestion that claimant may benefit from attendance at a chronic pain
and stress clinic, we find that the commission’s interpretation of that report did not
constitute an abuse of discretion. It is thus some evidence supporting the
commission’s conclusion that claimant’s disability was not yet permanent.” Id. at
239, 559 N.E.2d at 1311.
10 The commission did not, therefore, abuse its discretion in refusing to
interpret the October 6, 1991 report as evidence of maximum medical
improvement.
Kroger also challenges what it perceives to be Dr. Blythe’s partial reliance
on nonallowed conditions. Psychologically, the claim has been allowed for
“anxiety disorder with panic attacks.” Dr. Blythe’s November 6, 1991 C-84,
however, lists claimant’s present condition as “Post Traumatic Stress Disorder
(Secondary to Industrial Accident), Panic Attacks, Dysthymia.” PTSD and
dysthymia are also discussed in Dr. Blythe’s narratives, prompting Kroger’s
objection. Upon review, this argument proves unpersuasive.
Compensable disability must arise exclusively from the claim’s allowed
conditions. Fox v. Indus. Comm. (1955), 162 Ohio St. 569, 55 O.O. 472, 125
N.E.2d 1. Ideally, the diagnosis contained on a disability form should mirror
exactly the condition(s) allowed by the commission and, where it does not, closer
examination may be warranted. Some degree of flexibility, however, seems
particularly important when dealing with psychiatric conditions. As the
Washington Supreme Court observed:
“Psychology and psychiatry are imprecise disciplines. Unlike the biological
sciences, their methods of investigation are primarily subjective and most of their
findings are not based on physically observable evidence.” Tyson v. Tyson (1986),
107 Wash. 2d 72, 78, 727 P. 2d 226, 229.
The United States Supreme Court, in a criminal case, made a similar
comment:
“Psychiatric diagnosis in contrast, is to a large extent based on medical
‘impressions’ drawn from subjective analysis and filtered through the experience
of the diagnostician. This process often makes it very difficult for the expert
11 physician to offer definite conclusions about any particular patient.” Addington v.
Texas (1979), 441 U.S. 418, 430, 99 S.Ct. 1804, 1811, 60 L.Ed.2d 323, 333.
The reference to the nature of psychological diagnoses does not imply that
these diagnoses are freely interchangeable. Clearly, major depression and
paranoia are not the same and, in this case, all three disorders, PTSD, dysthymia,
and anxiety disorder with panic attacks, are distinct. Nevertheless, we find that
the multiple psychological diagnoses are not fatal to claimant’s compensation
application. There are three reasons for this.
First, regardless of the label attached, Dr. Blythe consistently referred to the
same symptoms as being the cause of disability. Second, many of the symptoms
are common to all three maladies. This largely explains why Dr. Blythe has had
difficulty categorizing the disorder. Finally, Dr. Blythe has always related the
relevant symptomatology to the industrial accident.
Cumulatively, this indicates that the debilitating symptoms are industrially
related. This is not a situation in which diagnostic flexibility will allow a
physician to surreptitiously treat a claimant for a nonindustrial ailment. The
problem seems to rest solely on Dr. Blythe’s understandable inability to affix a
single diagnosis to symptoms that fit several categories. For these reasons, the
commission’s reliance on Dr. Blythe’s reports is not an abuse of discretion, and
the award of temporary total disability compensation from July 18, 1991 to
January 1, 1994 is upheld.
Kroger lastly contends that the commission abused its discretion in
extending temporary total disability compensation beyond December 31, 1993,
given Dr. Blythe’s declaration of MMI of that same date. The commission
responds that it did not award temporary total disability compensation beyond that
date, rendering Kroger’s argument premature. The commission is factually
12 correct. What Kroger is really arguing is that the commission erred in failing to
declare claimant had reached MMI as of December 31, 1993. Kroger, however,
did not raise this argument below. It cannot, therefore, be raised at this time.
The judgment of the court of appeals is affirmed.
Judgment affirmed.
MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and
LUNDBERG STRATTON, JJ., concur.