Opinion
No. 88-74
Submitted February 8, 1989 —
Decided April 12, 1989.
Workers' compensation — Application for temporary total disability compensation properly denied, when.
APPEAL from the Court of Appeals for Franklin County, No. 86AP-984.
Appellant, Andrew Thomas, was injured on April 1, 1982 within the course of and arising out of his employment as a laborer with Henry J. Kaiser Company ("Kaiser"). Following allowance of his workers' compensation claim for lumbosacral strain, appellant received temporary total disability compensation from April 1, 1982 through April 19, 1982. Appellant apparently never returned to work for Kaiser. No reason for this was given. At some point thereafter appellant accepted a labor position at the Zimmer Nuclear Plant ("Zimmer"). There is no evidence that the work at this job was any less strenuous than the work at Kaiser. Appellant worked at Zimmer until early 1984 when he was laid off for reasons apparently unrelated to his injury. Following the layoff, appellant drew unemployment benefits through October 23, 1984.
On January 8, 1985, appellant filed an application to re-activate his claim requesting, among other things, temporary total disability compensation from September 7, 1984 until an unknown date. That application contained the statement of Dr. John Levitas, appellant's attending physician, that certified appellant as temporarily totally disabled from September 7, 1984 through approximately February 5, 1985. The record also contains a note from Dr. Levitas, dated December 7, 1984, restricting appellant from work involving repeated bending, lifting, twisting, prolonged standing or walking, and a May 22, 1985 report, extending temporary total disability to August 12, 1985.
Following a May 24, 1985 Industrial Commission hearing, a district hearing officer denied appellant's request for temporary total disability compensation from September 7, 1984 through May 24, 1985 "for lack of credible medical evidence." The order also noted that "claimant continued working until company layoff on 2-2-84 * * * and claimant exhausted his unemployment and then filed for Workers' Compensation." The order was affirmed by the Dayton Regional Board of Review.
On January 9, 1986 appellant was examined on the commission's behalf by Dr. Omar Brito. Dr. Brito found appellant incapable of performing his former job duties at Kaiser. Dr. Brito, however, was apparently unaware of appellant's employment at Zimmer, as his report indicated that appellant had not worked since the date of injury at Kaiser. Meanwhile, appellant's physician continued to certify appellant as being temporarily totally disabled.
Following a May 7, 1986 hearing, staff hearing officers affirmed the regional board order. Appellant then filed a complaint for a writ of mandamus in the Court of Appeals for Franklin County alleging that the commission had abused its discretion in failing to award him temporary total disability compensation. The appellate court denied the writ, finding that appellant had voluntarily abandoned his former position of employment at Kaiser and, thus, was not prevented from returning to his former position as a result of his injury.
Appellant now appeals to this court as a matter of right.
Agee, Clymer Morgan Co., L.P.A., and Philip J. Fulton, for appellant.
Anthony J. Celebrezze, Jr., attorney general, and Merl H. Wayman, for appellee.
In mandamus, the relator must establish a clear legal right to relief. State, ex rel. Pressley, v. Indus. Comm. (1967), 11 Ohio St.2d 141, 40 O.O. 2d 141, 228 N.E.2d 631. A clear legal right exists where the commission abuses its discretion by entering an order which is not supported by "some evidence." State, ex rel. Burley, v. Coil Packing, Inc. (1987), 31 Ohio St.3d 18, 31 OBR 70, 508 N.E.2d 936. We must presently determine whether the commission abused its discretion in denying temporary total disability compensation from September 7, 1984 through May 24, 1985. Upon review, we find its order conforms with the some evidence rule, and thus deny the requested writ.
Eligibility for temporary total disability compensation is satisfied where an industrial injury results in a temporary condition that prevents a claimant from returning to his or her former position of employment. State, ex rel. Ramirez, v. Indus. Comm. (1982), 69 Ohio St.2d 630, 23 O.O. 3d 518, 433 N.E.2d 586. "Former position of employment" has been defined as the position held at the time of injury. State, ex rel. Horne, v. Great Lakes Constr. Co. (1985), 18 Ohio St.3d 79, 80, 18 OBR 117, 118, 480 N.E.2d 753, 754. In the case at bar, the commission determined that the totality of the evidence before it did not establish a causal relationship between appellant's industrial injury and his alleged inability to return to his former position of employment at Kaiser.
However, the commission ultimately denied appellant's compensation request for "lack of credible medical evidence." In the medical evidence initially before the hearing officer, which evidence was part of appellant's application to re-activate his claim, Dr. Levitas certified appellant to be temporarily totally disabled beginning September 7, 1984. On this very same form, in response to an inquiry as to whether he had drawn unemployment benefits since his injury, appellant replied in the affirmative and indicated that he had received unemployment benefits during the period from September 7, 1984 through October 23, 1984. Under R.C. 4141.29(A) (4)(a), eligibility for unemployment benefits is premised, in part, on an applicant being "able to work and available for suitable work and * * * actively seeking suitable work * * *." Moreover, an employee is not entitled to unemployment compensation benefits unless he is capable of being employed in his usual trade or occupation or any other employment for which he is reasonably fitted. Craig v. Bur. of Unemp. Comp. (1948), 83 Ohio App. 247, 51 Ohio Law Abs. 449, 38 O.O. 356, 83 N.E.2d 628, paragraph two of the syllabus. This unresolved contradiction concerning appellant's ability to work undermines the persuasiveness of Dr. Levitas's certification. Further, in light of this conflict, the commission was not obligated to accord full evidentiary weight to subsequent certifications submitted by appellant. Finally, although the record also contains Dr. Brito's January 1986 report, we question the extent to which Dr. Brito's ultimate disability conclusion may have been influenced by the erroneous presumption that appellant had not worked since the date of injury.
Evaluation of the weight and credibility of the evidence before it rests exclusively with the commission. Burley, supra. In the present case, deficiencies in appellant's application to re-activate his claim and Dr. Brito's report constitute "some evidence" supporting the commission's conclusion that appellant's application for temporary total disability compensation was unsupported by credible medical evidence. Moreover, because we find the commission's decision to be supported by some evidence, we find it unnecessary to address the denial of compensation within the context of an "abandonment" theory as relied on by the appellate court. Accordingly, for the reasons set forth above, the judgment of the court of appeals is hereby affirmed.
Judgment affirmed.
MOYER, C.J., SWEENEY, HOLMES, DOUGLAS, WRIGHT, H. BROWN and RESNICK, JJ., concur.