State ex rel. Simon v. Indus. Comm.

1994 Ohio 203

• Court: Ohio Supreme Court
• Decided: December 13, 1994
• Docket: 1993-2207
• Status: Published

Opinion

The State ex rel. Simon, Appellee, v. Industrial Commission of

Ohio; Caterpillar Industrial, Inc., Appellant.

[Cite as State ex rel. Simon v. Indus. Comm. (1994), ___ Ohio

St.3d ___.]

Workers’ compensation — Denial of application for temporary total

disability compensation not an abuse of discretion, when.

(No. 93-2207 — Submitted October 24, 1994 — Decided December 14,

1994.)

Appeal from the Court of Appeals for Franklin County, No. 92AP-

1626.

Appellee-claimant, Johnnie L. Simon, sustained numerous

injuries in the course of and arising from his employment with

appellant Caterpillar Industrial, Inc., f.k.a. Towmotor

Corporation. At issue is claimant’s 1979 injury that was

originally allowed for “laceration, burn of left knee.” Claimant

missed two weeks of work as a result and incurred $143 in medical

expenses. In 1982, the Industrial Commission of Ohio assigned an

eight percent permanent partial disability to the injury.

In 1986, claimant applied to reactivate his claim. Except

for authorizing a change of physicians, the commission denied the

application, stating that “[m]edical and factual evidence do not

demonstrate the need for further treatment of allowed conditions

relating to the incident of April 3, 1979.”

In 1988, claimant alleged that his knee injury precipitated

“Hypoactive Sexual Desire and Adjustment Disorder with Depressed

Mood” and asked that these conditions be added to his allowed

claim and compensation be paid accordingly. He submitted a

report from then consulting psychologist, Dr. Donald J. Weinstein, who noted that claimant “complain[s] that the

accumulation of [his] injuries left him in pain most of the

time.” A left-wrist condition, however, was the only industrial

injury described as symptomatic. Dr. Weinstein’s conclusion

reiterated that the alleged psychological conditions “can be

attributed to the accumulative [sic] effects of his injuries.”

Commission psychiatrist Dr. Patricia Martin diagnosed claimant

with an “Adjustment Disorder with Mixed Emotional Features” and

concurred in Dr. Weinstein’s assessment of causal relationship.

“[A]djustment disorder with depression mood” was ultimately added

to claimant’s allowed claim.

In April 1990, claimant submitted the first of several C84

“physician’s reports supplemental” from Dr. Weinstein finding

temporary total disability from 1982 forward. Caterpillar

responded with a report from Dr. Meir Gross, who concluded:

“From the history, Mr. Simon was treated by psychotherapy

and antidepressant medication and so far according to him his

depression is getting worse not better. I doubt if there is any

chance of improving his emotional condition with more therapy.

It is my opinion that Mr. Simon has reached a condition of

permanency in regard to his emotional state. I feel he has also

reached a point of maximal medical improvement in regard to his

emotional state.”

On September 30, 1991, claimant moved to compel Caterpillar,

a self-insured employer, to pay temporary total disability

compensation pursuant to the C84s. In support, he offered the

report of Dr. William C. House, an associate of Dr. Weinstein’s,

who noted claimant’s recent change in medication from Prozac to Sinequan and wrote:

“Since that time, Mr. Simon has reported some improvement in

his functioning, including less fragmented sleep, increased

ability to relax, and perhaps a less depressed mood.

“Regarding the efficacy of therapy, Mr. Simon continues to

come for his sessions on a regular basis, reports that he wishes

to continue treatment, and indicates to me that he feels

increased hope and reports some modest improvement as a result of

his therapy, such as an increased activity level and a reduction

in withdrawal. As has been previously noted, he also cites his

many physical and financial problems as obstacles to further

improvement, though I believe that further modest gains are

possible. It also remains to be seen whether therapy may become

more effective as he continues to benefit from the recent

prescription of Sinequan. On this basis I believe that his

therapy should continue.”

The commission on May 20, 1992 awarded temporary total

disability compensation from May 4, 1990 through July 17, 1990

only, based on the report of Dr. Weinstein. Temporary total

disability compensation was denied from February 25, 1988 through

May 3, 1990 “because claimant was not being treated by any

physician for this claim over that period.” Temporary total

disability compensation after July 17, 1990 was denied as

“claimant’s disability has become permanent after July 17, 1990

based on the opinion of Drs. Meir & Gross [sic].”

Claimant filed a complaint in mandamus in the Court of

Appeals for Franklin County, asserting that the commission abused

its discretion in denying temporary total disability compensation

over the two periods in question. The appellate court did not address the denial of temporary total disability compensation

from February 25, 1988 through May 3, 1990. As to the denial of

temporary total disability compensation subsequent to July 17,

1990, the appellate court questioned, among other things, Dr.

Gross’ report since it “did not address the potential effect of a

change of medication on Mr. Simon’s depression — a change which

could and apparently did affect Mr. Simon’s potential for

improvement.” The appellate court returned the cause to the

commission for further consideration of the permanency question

with an amended order to follow.

This cause is now before this court on appeal as of right.

__________________

Ben Sheerer Co., L.P.A., and Paula Goodwin, for appellee.

David R. Cook, for appellant.

Per Curiam. Two periods of compensation are at issue:

February 25, 1988 through May 3, 1990, and July 17, 1990 forward.

For the reasons to follow, we affirm the denial of temporary

total disability compensation over the first period and affirm

the appellate court’s disposition of compensation for the second

period.

The commission denied temporary total disability

compensation from February 25, 1988 through May 3, 1990 due to

claimant’s lack of medical treatment during that time. Claimant

responds that the lack of treatment does not necessarily equate

to a lack of disability.

While a lack of treatment may not always equate to a lack of

disability, it can, as here, equate to a lack of proof thereof. The commission did not abuse its discretion in rejecting Dr.

Weinstein’s 1988 report since he addressed neither claimant’s

ability to return to his former position of employment nor the

temporariness of claimant’s condition. That report also noted

that the only symptomatic condition at that time was a wrist

injury unrelated to the claim at issue. Similarly, given our

holding in State ex rel. Case v. Indus. Comm. (1986), 28 Ohio

St.3d 383, 28 OBR 442, 504 N.E.2d 30, the commission did not

abuse its discretion in declining to retroactively apply Dr.

Weinstein’s April 1990 supplemental report. Thus lacking any

medical evidence in support, the commission properly denied

temporary total disability compensation over the first period.

Our analysis turns to the commission’s May 20, 1992

declaration of permanency. Our review is complicated by two

factors: (1) the susceptibility of the appellate court’s

reasoning to different interpretations and (2) the speculative

nature of Dr. House’s report.

“Permanency” or “maximum medical improvement” precludes

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. “Maximum

medical improvement” has been defined as “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 rehabilitative

procedures. A claimant may need supportive treatment to maintain

this level of function.” (Emphasis added.) Ohio Adm.Code 4121-3-

32. Caterpillar argues that Dr. Gross’ report was “some

evidence” of maximum medical improvement, and that the appellate

court erred in returning the cause merely because contrary

evidence — Dr. House’s report — existed. We do not believe that

Caterpillar’s position accurately reflects the reasoning

underlying the court’s decision to return the cause to the

commission. Caterpillar’s argument is premised on the appellate

court’s acceptance of Gross’ report as “some evidence.” Such

evidentiary acceptance is debatable, given the appellate court’s

attempt to discount that report. An equally plausible

interpretation of the appellate court’s reasoning is that the

Gross report was not “some evidence” of permanency — given the

subsequent change in claimant’s medical treatment — but that a

full writ was premature in light of Dr. House’s speculative

comments on the probability and extent of further improvement.

As such, we find that the appellate court acted properly in

letting the commission determine whether Dr. House’s report

supports or negates a finding of maximum medical improvement.

The appellate court judgment is therefore affirmed.

Judgment affirmed.

Moyer, C.J., A.W. Sweeney, Douglas, Resnick, F.E. Sweeney

and Pfeifer, JJ., concur.

Wright, J., concurs in part and dissents in part.

Wright, J., concurring in part and dissenting in part.

I concur in the court’s reasoning and result with respect to

the denial of temporary total disability benefits. I dissent to

the court’s affirmance of the limited writ of mandamus requiring

the Industrial Commission to reconsider its finding of permanency.

The commission’s determination that the relator’s allowed

condition became permanent after July 17, 1990 is supported by

“some evidence”; therefore, that finding is not an abuse of

discretion and mandamus should not lie. State ex rel. Burley v.

Coil Packing, Inc. (1987), 31 Ohio St.3d 18, 31 OBR 70, 508

N.E.2d 936.

The record includes two reports relevant to the permanency

determination: including one by Dr. Meir Gross (July 31, 1990)

and another by Dr. Jay Weinstein (February 25, 1988). The record

also includes what the majority describes as “the report of Dr.

William C. House.” That “report” is actually a letter signed

primarily by a “psychology assistant” and secondarily by his

“supervisor,” Dr. House (November 16, 1990). Regardless of its

author, the letter cannot be construed as requiring the

commission to reconsider its permanency finding.

The competent evidence in the record provides sufficient

support for the commission’s finding that the relator’s condition

became permanent after July 17, 1990. The report by Dr.

Weinstein considered two conditions, only one of which was

allowed. Dr. Weinstein did not consider whether the relator was

temporarily disabled or his likelihood of recovery. The more

recent report by Dr. Gross considered the question of temporary

disability and expressly concluded that the relator’s condition

was permanent and that he had reached maximum medical

improvement.

The House letter attempted to refute the findings of the

Gross report. Dr. House wrote that the relator’s medication had

been changed after the evaluation by Dr. Gross. Dr. House found that, as a result, the relator “reported some improvement in his

functioning, including less fragmented sleep, increased ability

to relax, and perhaps a less depressed mood.” Dr. House

concluded that: “I believe that further modest gains are

possible. It also remains to be seen whether therapy may become

prescription of Sinequan. On this basis, I believe that his

The majority incorrectly finds that the letter requires that

the commission reevaluate its permanency determination. The

letter is not even relevant to the question of whether the

relator’s condition had become permanent. As this court has

stated numerous times, a “permanent disability” is defined as “a

condition which will, ‘* * * with reasonable probability,

continue for an indefinite period of time without any present

indication of recovery therefrom.’ ” (Emphasis added.) Vulcan

Materials Co. v. Indus. Comm. (1986), 25 Ohio St.3d 31, 33, 25

OBR 26, 27, 494 N.E.2d 1125, 1127 (quoting Logsdon v. Indus.

Comm. [1944], 143 Ohio St. 508, 28 O.O. 429, 57 N.E.2d 75,

paragraph two of the syllabus). Consequently, in order to rebut

evidence of permanency, there must be evidence of recovery from

the disability itself (i.e., the underlying condition), and not

just improvement in the symptoms the disability creates.

The letter discusses modest improvement in the symptoms of

the relator’s depression, and does not consider the potential for

improvement in the underlying condition of depression. The

description of the relator’s improvement due to the change in

medication includes less fragmented sleep and an increased ability to relax. Those two problems were merely symptoms of the

relator’s depression. Dr. House did not consider whether the

change in medication would affect the potential of recovery of

the underlying condition by, for example, correcting a chemical

imbalance that caused the depression. As such, his opinion is

not relevant to the question of whether the condition became

permanent, and therefore cannot properly form the basis for

requiring the commission to reevaluate its decision.

Even if it can somehow be argued that the letter addresses

the potential for improvement in the relator’s condition, it

still does not negate the evidence in support of the commission’s

decision.

First, a finding by the commission is not an abuse of

discretion if it is contradicted by other evidence, so long as it

is supported by some evidence. See State ex rel. Burley v. Coil

Packing, Inc., supra. Second, the letter was not competent

evidence on the issue of whether the relator’s condition was

temporary or permanent. Dr. House found that modest gains were

possible. In order to be competent evidence of maximum medical

improvement or lack thereof, a medical opinion must be expressed

to a reasonable degree of medical probability. See Vulcan

Materials Co. v. Indus. Comm., supra; State ex rel. Matlack, Inc.

v. Indus. Comm. (1991), 73 Ohio App.3d 648, 655, 598 N.E.2d 121,

125. Finally, the fact that the relator experienced very modest

improvement, including “perhaps a less depressed mood,” is in

itself insufficient to negate the finding that the relator had

reached the treatment plateau of maximum medical improvement.

That concept does not require that the patient’s condition remain

constant, only that it be expected, within reasonable medical probability, to continue at essentially the same level for an

indefinite period. See State ex rel. Copeland Corp. v. Indus.

Comm. (1990), 53 Ohio St.3d 238, 559 N.E.2d 1310. Consequently,

the mere change of medication, without a medical opinion as to

its probable success, is insufficient to overcome an otherwise

proper finding of permanency.

Besides the wholly inadequate House letter, the court of

appeals based its decision to grant a limited writ of mandamus on

its perception that the commission did not “carefully” consider

the evidence presented to it. The court of appeals perceived a

lack of diligence because the commission, in an apparent

typographical error, referred to Dr. Meir Gross as Drs. Meir and

Gross. My word, what a jump!

A court’s review of a commission decision is limited to

whether the commission’s determination is supported by some

evidence. State ex rel. Burley v. Coil Packing, Inc., supra.

The court of appeals improperly extended its review to include an

ambiguous requirement of “carefulness.” The typographical error

is a patently harmless one, if that. The commission had three

documents that addressed the permanency issue, and the order

clearly set forth the evidence that the commission relied on in

making its determination, which is all the law requires. See

State ex rel. Mitchell v. Robbins & Myers, Inc. (1983), 6 Ohio

St.3d 481, 6 OBR 531, 453 N.E.2d 721. Because the commission’s

decision is supported by some evidence, it should not be

disturbed because of a mere typographical error. It is for these

reasons that I respectfully dissent.