Opinion
No. 89-2161
Submitted September 25, 1990 —
Decided December 12, 1990.
Workers' compensation — Commission's decision granting temporary total disability compensation upheld when there is "some evidence" to support the basis for the decision.
APPEAL from the Court of Appeals for Franklin County, No. 87AP-1050.
In December 1979, claimant-appellee ("claimant"), William H. King, Sr., was injured during the course of his employment with appellant, Jeffrey Mining Machinery Division, Dresser Industries, Inc. Claimant filed a workers' compensation claim which subsequently was allowed for "[h]erniated nucleus pulposes L5-S1 on right."
In September 1985, claimant sought to reactivate his claim and requested temporary total disability compensation from "8/12/85 to present" or until "[r]elease by attending physician." Claimant submitted a disability certification from his attending physician, Paul J. Matrka, M.D., which attributed claimant's disability to "[l]umbar strain." A subsequent report from Dr. Matrka characterized claimant's condition as "chronic" "[l]umbar strain/low back pain."
On July 8, 1986, a district hearing officer of appellee, Industrial Commission of Ohio ("commission"), made the following order with regard to claimant's request:
"* * * Temporary total compensation is to be paid from 8/12/85 through 7/3/86, and to continue until the date of next hearing. * * *
"This claim is referred to Medical Section (MEDSP) [orthopedic] on the issue of extent of disability pursuant to Ramirez guidelines.
"Reset when specialists' report [ sic] is on file.
"This order is based on the medical reports of Dr. Matrka."
Appellant's appeal of the district hearing officer's order before the regional board of review was affirmed on February 4, 1987. Consequently, appellant filed an appeal with the commission.
During the pendency of appellant's appeal before the commission, a second hearing was held by a district hearing officer on June 1, 1987 pertaining to the original order rendered by the district hearing officer on July 8, 1986. As a result of the second hearing, claimant's temporary total compensation was terminated on the grounds that his condition had become permanent.
On July 22, 1987, the commission refused to hear the appeal of the regional board of review's order of February 4, 1987.
Subsequently, appellant filed a complaint for a writ of mandamus in the court of appeals, claiming that the commission had abused its discretion in awarding temporary total compensation to claimant from August 12, 1985 through June 10, 1987. The matter was referred to a referee of the court who thereafter concluded that the court should deny the requested writ of mandamus, because appellant failed to show that it exhausted its administrative remedies before the commission and that it lacked a plain and adequate remedy at law. The court of appeals denied the writ and found that while appellant had not exhausted its administrative remedies, Dr. Matrka's report was essentially "some evidence" supporting the commission's decision.
The cause is now before this court upon an appeal as of right.
Vorys, Sater, Seymour Pease, Robert A. Minor and Elizabeth T. Smith, for appellant.
Anthony J. Celebrezze, Jr., attorney general, Michael L. Squillace and Sandra L. Becher, for appellee.
Appellant contends that the medical reports in issue attributed claimant's disability to non-allowed conditions. Appellant submits that the only condition allowed is "[h]erniated nucleus pulposes L5-S1 on right." Since the medical reports consistently referred to "lumbar strain" and "low back pain" with respect to claimant's condition, appellant argues that claimant's condition is not compensable.
In our view, the commission did not abuse its discretion in refusing to hear appellant's appeal and, thus, we uphold the granting of temporary total compensation to claimant, because there was "some evidence" to support such a decision. See State, ex rel. Burley, v. Coil Packing, Inc. (1987), 31 Ohio St.3d 18, 31 OBR 70, 508 N.E.2d 936.
A review of the record indicates that the commission was apparently satisfied that claimant's condition was basically the same condition that had been previously compensated. As we stated in Burley, supra, at 20, 31 OBR at 72, 508 N.E.2d at 938:
"* * * [T]he party which challenges the Industrial Commission's determination as to the extent of disability bears the burden of demonstrating that the commission's determination manifests an abuse of discretion and, in this context, abuse of discretion has been repeatedly defined as a showing that the commission's decision was rendered without some evidence to support it. State, ex rel. Elliott, v. Indus. Comm. (1986), 26 Ohio St.3d 76, 79, 26 OBR 66, 68, 497 N.E.2d 70, 72; State, ex rel. Milburn, v. Indus. Comm. (1986), 26 Ohio St.3d 119, 121, 26 OBR 102, 103, 498 N.E.2d 440, 441; State, ex rel. Rouch, v. Eagle Tool Machine Co., supra [(1986), 26 Ohio St.3d 197], at 198, 26 OBR [289] at 290, 498 N.E.2d [464] at 466."
Since the medical reports of Dr. Matrka do indeed appear to constitute "some evidence" to support the commission's decision, we affirm the court of appeals' denial of appellant's request for a writ of mandamus.
Judgment affirmed.
MOYER, C.J., SWEENEY, DOUGLAS, H. BROWN and RESNICK, JJ., concur.
HOLMES and WRIGHT, JJ., dissent.
I must respectfully dissent from the majority's finding that there was "some evidence" in the record to support the Industrial Commission's awarding the claimant, King, temporary total disability compensation and that therefore the court of appeals was correct to deny the employer's application for a writ of mandamus. Because I believe there was simply no evidence in the record to support the commission's awarding temporary total disability compensation to King for the time period covering September 30, 1986 until June 10, 1987, and because the employer has effectively been denied an adequate remedy at law, I would grant the employer's request for a writ of mandamus and reverse the commission's finding that King was entitled to temporary total disability compensation for the above time period.
On February 4, 1987, the Columbus Regional Board of Review heard the employer's appeal and issued its order "* * * based on the employers' [ sic] Appeal, evidence in the file and/or evidence adduced at the hearing * * *." Contained within King's file at that time were medical reports from the three physicians who had examined him during the pendency of his claims.
Dr. Paul J. Matrka, King's attending physician, noted on the Bureau of Workers' Compensation Physician's Report Supplemental form that King's "[l]umbar strain/low back pain" represented a "chronic condition," after he had examined King on April 28, 1986. This form was dated May 5, 1986 and was duly filed with the commission.
Dr. R.B. Larrick, a physician whom the employer had requested to examine King, conducted an examination and in a September 16, 1986 report concluded: "Unquestionably Mr. King has achieved maximum medical recovery which by objective evaluation has been complete."
Dr. Robert Turner, an Industrial Commission specialist who was appointed to examine King pursuant to the district hearing officer's July 8, 1986 order, stated in his Specialist Report to the commission: "* * * I think it safe to say at this point in time that the condition is permanent. The man is not going to improve without a change in treatment and I see no change in treatment that is available. * * *"
The record then clearly indicates that all of these physicians agreed that King's condition had either become permanent or had completely cleared up by September 30, 1986, the date upon which Dr. Turner conducted the physicians' last examination of King. Although Dr. Matrka refers to King's condition as "chronic," the repeated use of this term over a number of years of treatment clearly demonstrates that the condition was, in reality, permanent.
The commission is charged with knowledge of the contents of an applicant's file and indeed expressly stated that it relied on those contents as a basis for its determination. It is settled that where there is no evidence upon which the commission could base its factual conclusions, then an abuse of discretion is present and mandamus will lie. State, ex rel. Paragon, v. Indus. Comm. (1983), 5 Ohio St.3d 72, 74, 5 OBR 127, 128, 448 N.E.2d 1372, 1374, citing State, ex rel. Kramer, v. Indus. Comm. (1979), 59 Ohio St.2d 39, 42, 13 O.O. 3d 30, 31, 391 N.E.2d 1015, 1017. Since neither the physicians' reports nor any other evidence in King's file constituted "some evidence" upon which the commission could base its conclusion that King was only temporarily disabled, I believe the commission abused its discretion by affirming the hearing officer's award of temporary total disability compensation for the time period covering September 30, 1986, the date of King's last physical examination, to June 10, 1987, the date when the district hearing officer finally terminated King's temporary total disability compensation.
I also believe the employer has been denied an adequate remedy at law, because the Industrial Commission's hearing officer refused to hear the employer's duly filed appeal. This refusal comes in the face of the Columbus Regional Board of Review's failure to terminate King's temporary total disability compensation where there was no evidence in the record to support such a continuation. I believe the denial of an appeal under such circumstances is an abuse of discretion. Additionally, because the employer had duly filed its appeal from the board of review's decision, the employer could reasonably conclude that it would have been useless to appeal from the hearing officer's later decision at the reset hearing, since all of the evidence available at the reset hearing was also available to the board of review.
The purpose of a reset hearing is to consider new evidence and new developments. In the case before us, all of the evidence available to the hearing officer at the reset hearing had already been placed in King's file to be examined by the Columbus Regional Board of Review.
Because there was no evidence in the record to support the board of review's determination and because the Industrial Commission has denied the employer an adequate remedy at law, I would grant the employer's application for a writ of mandamus and deny King temporary total disability compensation for disability occurring after September 30, 1986.
HOLMES, J., concurs in the foregoing dissenting opinion.