State ex rel. Viking Forge Corp. v. Perry

28 N.E.3d 95, 142 Ohio St. 3d 108
CourtOhio Supreme Court
DecidedMarch 18, 2015
DocketNo. 2012-1268
StatusPublished

This text of 28 N.E.3d 95 (State ex rel. Viking Forge Corp. v. Perry) 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. Viking Forge Corp. v. Perry, 28 N.E.3d 95, 142 Ohio St. 3d 108 (Ohio 2015).

Opinion

Per Curiam.

{¶ 1} Appellee Kelly Perry severely injured both thumbs in an industrial accident on September 26, 2008. Drew R. Engles, M.D., performed surgery that same day to partially amputate Perry’s left thumb and to repair Perry’s right thumb. Following a period of temporary total disability, Perry returned to light-duty work on December 1, 2008, and to his former position of employment with no medical restrictions on February 4, 2009.

{¶ 2} Dr. Engles examined Perry on February 18, 2009, and reported, “I believe the patient is doing well enough that he may be discharged from active care and no further intervention is anticipated from my standpoint. The patient is currently looking into a possible prosthesis and this can be handled through the occupational therapist who typically assists patients with these arrangements.”

{¶ 3} On March 2, 2009, Perry was terminated from employment for violating work rules. He returned to Dr. Engles on March 18, 2009. He told Dr. Engles that he had lost his job and asked to be placed on work restrictions and to continue therapy. Dr. Engles reported, “With respect to the patient’s request to go back onto work restrictions and for additional therapy, I do not believe this would be prudent. I believe that the patient has maximized the benefit of therapy.” Dr. Engles referred Perry to the occupational branch of his clinic for assistance with obtaining a prosthesis and for any other ongoing care.

{¶ 4} On April 7, 2009, Perry changed his physician of record to Steven Rodgers, M.D., and terminated his relationship with Dr. Engles, because surgical issues no longer needed to be addressed. Dr. Rodgers placed Perry on restricted duty, and Perry applied for an additional period of temporary-total-disability compensation to begin April 7, 2009.

[109]*109{¶ 5} A staff hearing officer awarded Perry temporary-total-disability compensation. The hearing officer relied on Perry’s testimony that the incident for which he was terminated was not his fault, but rather was caused by a coworker, to support the finding that Perry had not voluntarily abandoned his employment. In addition, the hearing officer relied on the medical documentation from Dr. Rodgers and Perry’s testimony to find that Perry remained temporarily and totally disabled as of April 7, 2009.

{¶ 6} Perry’s former employer, appellant, Viking Forge Corporation, filed a complaint for a writ of mandamus alleging that appellee Industrial Commission abused its discretion when it ordered payment of temporary-total-disability compensation for the period after Perry was discharged from employment. The Tenth District Court of Appeals concluded that Perry had not voluntarily abandoned his employment and that Dr. Rodgers’s findings of increased pain, loss of sensation, and hypersensitivity, coupled with his intended action for treatment, constituted some evidence upon which the commission could rely to award temporary-total-disability compensation. The court denied the writ.

{¶ 7} Viking Forge filed an appeal as of right. We referred the case to mediation and stayed briefing. After mediation was unsuccessful, the case was returned to the regular docket and briefing commenced.

{¶ 8} R.C. 4123.56 provides for compensation for temporary total disability when an industrial injury prevents a claimant from performing the duties of his or her position of employment. See State ex rel. Floyd v. Formica Corp., 140 Ohio St.3d 260, 2014-Ohio-3614, 17 N.E.3d 547, ¶ 14; State ex rel. Baker v. Indus. Comm., 89 Ohio St.3d 376, 380, 732 N.E.2d 355 (2000). If a claimant is no longer employed for reasons unrelated to the industrial injury and has not reentered the workforce, he is not eligible for temporary-total-disability compensation, because the injury no longer is the cause of the loss of wages. State ex rel. McCoy v. Dedicated Transport, Inc., 97 Ohio St.3d 25, 2002-Ohio-5305, 776 N.E.2d 51; State ex rel. Louisiana-Pacific Corp. v. Indus. Comm., 72 Ohio St.3d 401, 650 N.E.2d 469 (1995). The underlying principle is that the employee’s departure from the workplace must be causally related to the injury for the employee to be eligible for temporary-total-disability compensation. State ex rel. Rockwell Internatl. v. Indus. Comm., 40 Ohio St.3d 44, 531 N.E.2d 678 (1988).

{¶ 9} Thus, the medical aspect of an application for temporary-total-disability compensation that is filed after a claimant’s termination must be carefully scrutinized, particularly when the claimant had been released to work or had actually returned to the former position of employment. State ex rel. Ohio Treatment Alliance v. Paasewe, 99 Ohio St.3d 18, 2003-Ohio-2449, 788 N.E.2d 1035, ¶ 7. The onset of disability is inherently suspect when it coincides with termination of employment. Id. at ¶ 9.

[110]*110{¶ 10} Viking Forge challenges the sufficiency of the evidence in support of Perry’s claim before the commission. Thus, we must determine whether there is evidence that supports the commission’s finding that Perry was entitled to temporary-total-disability compensation. If so, there was no abuse of discretion, and mandamus was appropriately denied. State ex rel. Burley v. Coil Packing, Inc., 31 Ohio St.3d 18, 508 N.E.2d 936 (1987).

{¶ 11} Viking Forge maintains that there were no new and changed circumstances in Perry’s medical condition to support an award of temporary-total-disability compensation after Perry’s termination from employment. According to Viking Forge, after Perry was released for work without restrictions on February 4, the only circumstance that changed was that Dr. Rodgers reported that Perry could not work, an opinion that contradicted the medical opinion of Dr. Engles. Viking Forge maintains that upon careful scrutiny, as required by Paasewe, the evidence does not support the commission’s finding of temporary total disability.

{¶ 12} In Paasewe, without explanation, a doctor issued an opinion certifying the claimant as disabled through October 11, 2000, which repudiated the same doctor’s earlier report in which he had released the claimant for work on July 10, 2000. Paasewe, 99 Ohio St.3d 18, 2003-Ohio-2449, 788 N.E.2d 1035, ¶ 11. Unlike Paasewe, this case presents conflicting medical evidence. Dr. Engles said he could no longer provide surgical services for Perry and referred him to a clinic for ongoing care. Perry began treating with Dr. Rodgers, whose opinion differed from Dr. Engles’s opinion.

{¶ 13} The commission is exclusively responsible for evaluating the weight and credibility of evidence and deciding disputed issues of fact. Burley, 31 Ohio St.3d at 20-21, 508 N.E.2d 936. The commission found the medical documentation from Dr. Rodgers to be credible evidence. We agree with the court of appeals that the commission’s evaluation passed the scrutiny required by Paasewe.

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Related

State ex rel. Floyd v. Formica Corp. (Slip Opinion)
2014 Ohio 3614 (Ohio Supreme Court, 2014)
State ex rel. Mitchell v. Robbins & Myers, Inc.
453 N.E.2d 721 (Ohio Supreme Court, 1983)
State ex rel. Burley v. Coil Packing, Inc.
508 N.E.2d 936 (Ohio Supreme Court, 1987)
State ex rel. Rockwell International v. Industrial Commission
531 N.E.2d 678 (Ohio Supreme Court, 1988)
State ex rel. Pass v. C.S.T. Extraction Co.
658 N.E.2d 1055 (Ohio Supreme Court, 1996)
State ex rel. Consolidation Coal Co. v. Industrial Commission
677 N.E.2d 338 (Ohio Supreme Court, 1997)
State ex rel. Baker v. Industrial Commission
732 N.E.2d 355 (Ohio Supreme Court, 2000)
State ex rel. McCoy v. Dedicated Transport, Inc.
776 N.E.2d 51 (Ohio Supreme Court, 2002)
State ex rel. Ohio Treatment Alliance v. Paasewe
99 Ohio St. 3d 18 (Ohio Supreme Court, 2003)
State ex rel. Louisiana-Pacific Corp. v. Indus. Comm.
1995 Ohio 153 (Ohio Supreme Court, 1995)
State ex rel. Consolidation Coal Co. v. Indus. Comm.
1997 Ohio 46 (Ohio Supreme Court, 1997)
State ex rel. Baker v. Indus. Comm.
2000 Ohio 168 (Ohio Supreme Court, 2000)
State ex rel. McCoy v. Dedicated Transport, Inc.
2002 Ohio 5305 (Ohio Supreme Court, 2002)

Cite This Page — Counsel Stack

Bluebook (online)
28 N.E.3d 95, 142 Ohio St. 3d 108, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-viking-forge-corp-v-perry-ohio-2015.