State ex rel. Simon v. Industrial Commission

642 N.E.2d 1096, 71 Ohio St. 3d 186
CourtOhio Supreme Court
DecidedDecember 14, 1994
DocketNo. 93-2207
StatusPublished
Cited by13 cases

This text of 642 N.E.2d 1096 (State ex rel. Simon v. Industrial Commission) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. Simon v. Industrial Commission, 642 N.E.2d 1096, 71 Ohio St. 3d 186 (Ohio 1994).

Opinion

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.

[189]*189Caterpillar 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 [190]*190was 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: “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 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).

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Bluebook (online)
642 N.E.2d 1096, 71 Ohio St. 3d 186, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-simon-v-industrial-commission-ohio-1994.