Opinion
No. 83-17
Decided August 24, 1983.
Workers' compensation — "Anxiety neurosis" — Claimant refuses to submit to psychological examination — Commission may order examination "at any time, and from time to time" — R.C. 4123.53.
APPEAL from the Court of Appeals for Franklin County.
On September 27, 1967, appellant, Lillian E. Molden, sustained a burn injury to her right arm while in the course and scope of her employment with the Callander Cleaners Company. A claim for this injury was recognized and allowed by the Bureau of Workers' Compensation. Subsequently, appellant requested recognition for an additional condition of "anxiety neurosis" which the Industrial Commission, appellee herein, allowed on January 2, 1980.
On August 19, 1980, appellant filed a motion with the commission requesting temporary total disability compensation for the period beginning February 27, 1979. After a hearing on the motion, the district hearing officer issued the following order:
"Temporary Total Compensation is to be paid from 10-2-80 through 6-1-81 and to continue upon submission of proof.
"It is the finding that the claimant was not temporarily and totally disabled from 2-27-79 to 10-1-80 and therefore this omitted period is not compensable.
"Refer the file to the medical section to schedule an examination by a psychiatrist on the question of whether or not the claimant is temporarily and totally disabled as a result of the allowed psychological condition."
On April 22, 1981, appellant appealed the order of the district hearing officer to the Columbus Regional Board of Review. Thereafter, the commission notified appellant that she had been scheduled for a psychological examination on June 15, 1981, at the office of Lee Howard, Ph.D. By letter dated May 18, 1981, appellant's counsel forwarded notification to the commission's medical director that due to the pending appeal of the district hearing officer's order, "your department has no jurisdiction to examine." Further correspondence was carried on between appellant's counsel and the commission, whereby counsel steadfastly refused to permit his client to submit to a psychological examination.
By order of February 17, 1982, the commission notified appellant that all additional compensation previously granted had been suspended until such time as she notified the medical section that she would appear for a psychological examination.
Appellant then instituted the instant action in mandamus in the court of appeals requesting the issuance of a writ compelling the commission to reinstate her workers' compensation benefits. The court of appeals denied the writ, concluding that the commission did not abuse its discretion when appellant's benefits were suspended pending her refusal to submit to a medical examination.
The cause is now before this court on an appeal as of right.
Mr. Michael J. Muldoon, for appellant.
Mr. Anthony J. Celebrezze, Jr., attorney general, and Mr. James E. Davidson, for appellee.
Without citation to legal authority, appellant contends that her appeal of the February 13, 1981 order of the district hearing officer suspended, as a matter of law, the commission's jurisdiction to order her to submit to a medical examination. Appellant's contention is devoid of merit. R.C. 4123.53 provides in relevant part as follows:
"Any employee claiming the right to receive compensation may be required by the industrial commission to submit himself for medical examination at any time, and from time to time, at a place reasonably convenient for such employee, and as may be provided by the rules of the commission. * * * If such employee refuses to submit to any such examination or obstructs the same, his right to * * * receive any payment for compensation theretofore granted, shall be suspended during the period of such refusal or obstruction."
The statute is clear and unambiguous, specifically authorizing the commission to require any claimant seeking benefits under the Workers' Compensation Act to submit to a medical examination "at any time, and from time to time" at the risk, inter alia, of forfeiting the right to receive compensation theretofore granted. Moreover, the statute contains no reference whatsoever that an appeal from an order of a district hearing officer operates to suspend the commission's jurisdiction to order claimants to submit to medical examinations.
Implicit within appellant's argument is an invitation that this court insert the following phrase into the statute: "But no medical examination shall be conducted while a claimant's appeal is pending before a regional board of review or the Industrial Commission." We categorically reject this invitation since it is well-settled that when a statute is free from ambiguity this court will not, under the guise of judicial interpretation, "* * * delete words used or * * * insert words not used [within a statute]." Columbus-Suburban Coach Lines v. Pub. Util. Comm. (1969), 20 Ohio St.2d 125, 127 [49 O.O.2d 445]; Wheeling Steel Corp. v. Porterfield (1970), 24 Ohio St.2d 24, 28 [53 O.O.2d 13]; Bernardini v. Bd. of Edn. (1979), 58 Ohio St.2d 1, 4 [12 O.O. 3d 1]; Dougherty v. Torrence (1982), 2 Ohio St.3d 69, 70; Ohio Assn. of Pub. School Emp. v. Twin Valley Local School Dist. Bd. of Edn. (1983), 6 Ohio St.3d 178, 181.
Appellant further contends that she was not afforded a hearing and the opportunity to present evidence prior to the commission's February 17, 1982 order, in accordance with R.C. 4123.515. This precise issue was rejected by this court in State, ex rel. Eltra Corp., v. Indus. Comm. (1973), 36 Ohio St.2d 96, 99 [65 O.O.2d 245], wherein it was concluded that "* * * R.C. 4123.515 * * * [relates] to the initial determination by the bureau of the validity or allowability of a claim."
The subject order was not issued by a district hearing officer regarding the initial determination of the validity or allowability of a claim. Instead, the order was issued by the commission after the initial determination of appellant's claim, in view of her repeated refusal to consent to a psychological examination. Accordingly, appellant's reliance on R.C. 4123.515 is misplaced.
Parenthetically, we wish to emphasize that a review of the entire record fails to disclose any assertion or explanation on appellant's behalf setting forth a single reason as to her inability to attend the June 15, 1981 medical examination. Nonetheless, if appellant has sought to proffer an explanation, she could have submitted a motion to the commission in accordance with Ohio Adm. Code 4121-3-16 (B). Thereafter, appellant could have requested a special hearing in conformity with Ohio Adm. Code 4121-3-09 (C). Neither avenue, however, was pursued.
For the foregoing reasons, the judgment of the court of appeals denying the writ is hereby affirmed.
Judgment affirmed.
CELEBREZZE, C.J., W. BROWN, SWEENEY, LOCHER, HOLMES, C. BROWN and J.P. CELEBREZZE, JJ., concur.