Opinion
No. 85-392
Decided June 11, 1986.
Workers' compensation — Authority of commission to reclassify injury from temporary to permanent — R.C. 4123.56, construed.
APPEAL from the Court of Appeals for Franklin County.
On September 28, 1976, relator-appellant, Clayton Bryant, was injured as a result of his falling down a stairway while in the employment of respondent-appellee, Pinkerton's, Inc. Shortly thereafter, appellant filed a claim for workers' compensation benefits. A district hearing officer found that appellant had sustained the following injuries: a periorbital hematoma on the right eye, a fracture of the right wrist, a fracture of the zygoma and a cerebral concussion. Appellant was adjudged to be temporarily totally disabled under R.C. 4123.56 and received benefits pursuant to this finding from September 29, 1976 through January 23, 1977.
Appellant experienced recurring headaches and was under the care of Dr. Richard B. Budde. Dr. Budde's periodic examinations found appellant to be temporarily totally disabled.
In the latter part of 1977, appellant was examined by Dr. James L. Armitage. Dr. Armitage found appellant to be "totally disabled from all types of employment," but qualified this finding, stating, "I do not feel that it's entirely due to the industrial injury and that part of it is due to spondylosis that he has in his spine and neck [a condition which Dr. Armitage intimated as preexisting the industrial accident] and part of it is due to this man's anxiety."
On March 30, 1978, a district hearing officer held that appellant was no longer entitled to temporary total disability benefits. Appellant appealed this finding to the Dayton Regional Board of Review.
Prior to the board's hearing, appellant was examined by Dr. Charles Ongkiko who diagnosed appellant as "suffering from a Tension (musculoskeletal) type of headache which is independent of an injury he sustained in [ sic] 09-27-76." Dr. Ongkiko concluded that appellant was not "totally disabled from this condition, that is, permanently disabled from this." Appellant's impairment was speculated to be between ten and fifteen percent.
On January 22, 1979, the board of review modified the district hearing officer's finding and ordered that appellant receive compensation for temporary total disability from January 1, 1978 through June 20, 1978. The board declined to consider any further compensation until appellant was examined by another specialist to determine the extent of his disability.
Pursuant to the board's January 22, 1979 order, appellant was examined by Dr. Donald Siehl on January 11, 1980. Dr. Siehl concluded that appellant's impairment was fifty percent, but did not indicate whether this impairment was temporary or permanent in nature.
On April 30, 1980, a district hearing officer found appellant was entitled to receive fifty percent temporary partial disability benefits from January 12, 1980 through September 28, 1980. Appellant was ordered to see another specialist and the matter was to be reevaluated in August 1980. On June 27, 1980, the board of review affirmed the district hearing officer's order in all respects.
Pursuant to this order, Dr. James P. Owens, an Industrial Commission medical specialist, examined appellant and found he suffered from a permanent partial impairment of twenty-five percent. A district hearing officer thereafter ordered that appellant be compensated for a fifty percent impairment from September 28, 1980 through April 30, 1981, at which time appellant was to be reexamined to determine the extent of his disability.
On March 11, 1981, pursuant to appellant's motion, a district hearing officer ordered that appellant be permitted to receive benefits for "aggravation of cervical spondylothesis [ sic] and facet arthritis, both pre-existing the injury of record."
Appellant was reexamined by Dr. Owens in August 1981, at which time Dr. Owens revised his diagnosis to that of a permanent partial impairment of thirty-five percent.
On March 1, 1982, a district hearing officer ordered that appellant be awarded "Temporary Partial Compensation at 50% impairment from 1-20-82 to 5-30-82" and referred appellant to an independent neurologist to determine the extent of the disability.
On May 15, 1982, appellant was examined by Dr. John C. Steiner who opined that appellant was partially disabled for other gainful employment. Based upon Dr. Steiner's report, a district hearing officer found that appellant was entitled to receive compensation for a temporary partial disability of thirty percent from October 31, 1982 for a period of forty weeks. Appellant appealed this decision.
On January 19, 1983, Dr. Budde, appellant's treating physician, expressed the opinion that appellant was permanently and totally disabled in regard to his previous occupation.
On March 25, 1983, the Dayton Regional Board of Review affirmed the order of the district hearing officer. Appellant subsequently appealed from this decision. After a hearing on November 30, 1983, a staff hearing officer of the Industrial Commission affirmed the decision of the regional board of review on the grounds that "[t]he denial of Temporary Total Disability Compensation is based on the fact that the claimant's condition is permanent, as indicated by the report of Dr. Owens. The rate of 30% is based on the report of Dr. Steiner."
Appellant thereafter instituted an action for a writ of mandamus in the Court of Appeals for Franklin County seeking an order directing the Industrial Commission to allow payment of temporary total disability benefits. The reviewing referee for the appellate court recommended that the writ of mandamus issue on the grounds that the commission lacked sufficient evidence to conclude that relator's impairment had become permanent. Both respondents filed objections to this recommendation. On February 7, 1985, the appellate court denied the writ of mandamus.
The cause is now before this court upon an appeal as of right.
Casper Casper and Ronald M. Kabakoff, for appellant.
Vorys, Sater, Seymour Pease, Thomas M. Taggart, Robert A. Minor and Bruce L. Ingram, for appellee Pinkerton's, Inc. Anthony J. Celebrezze, Jr., attorney general, Janet E. Jackson and Tyrone Yates, for appellee Industrial Commission.
The crux of this appeal concerns the authority of the Industrial Commission to reclassify an injury from temporary to permanent. Appellant would have this court interpret R.C. 4123.56 as requiring a minimum of two hundred weeks' payment of temporary total disability benefits before a temporary disability may be considered to have become a permanent condition.
This proposition is premised upon the following portion of R.C. 4123.56:
"After two hundred weeks of temporary total disability benefits, the claimant shall be scheduled for an examination by the industrial commission medical department for an evaluation to determine whether or not the temporary disability has become permanent. Where the employer has elected to pay compensation direct, the employer shall notify the medical section immediately after payment of two hundred weeks of temporary total disability and request that the claimant be scheduled for examination by the medical section."
In State, ex rel. Ramirez, v. Indus. Comm. (1982), 69 Ohio St.2d 630 [23 O.O.3d 518], this court established that an employee is entitled to receive temporary total disability when injured and unable to work until one of the following three things occurs: (1) he has returned to work, (2) his treating physician has made a written statement that he is capable of returning to his former position of employment, or (3) the temporary disability has become permanent.
Pursuant to appellant's argument, the third condition of the Ramirez test is subject to that portion of R.C. 4123.56 which mandates a medical examination to determine if the injury has become permanent after the passage of two hundred weeks. Hence, once the Industrial Commission determines that a claimant is entitled to receive temporary total disability benefits under R.C. 4123.56, the commission may not reevaluate the status of claimant's injury until he has received two hundred weeks of temporary total disability benefits.
A review of the Workers' Compensation Act reveals the infirmity of this argument. R.C. Chapter 4123 contains several separate and distinct provisions pertaining to the manner in which a particular work-related disability is to be compensated. Temporary total disabilities are to be compensated pursuant to R.C. 4123.56, permanent partial disabilities under R.C. 4123.57 and permanent total disabilities under R.C. 4123.58. This statutory scheme manifests a legislative intent that a worker's disability be compensated in accordance with the designation of the condition. Appellant's proposed construction of R.C. 4123.56 would vitiate this statutory scheme by requiring two hundred weeks of temporary total benefits in cases where an injury has been ascertained to have become a permanent condition.
This court adopts the analysis of R.C. 4123.56 provided in the referee's report to the court of appeals. Therein, the two-hundred-week provision of R.C. 4123.56 was interpreted as follows:
"The two-hundred-week rule set forth in R.C. 4123.56 does not authorize the automatic payment of temporary total disability benefits for said period but merely acts as a safety valve on the indefinite payment of temporary benefits. R.C. 4123.56 requires the commission to schedule a medical examination at a time certain in the administration of a temporary total benefit claim. It does not prevent the commission from determining that a disability has become permanent pursuant to the mandate of Ramirez and prior to the expiration of two hundred weeks of temporary total disability payments."
In view of the findings of Drs. Owens and Steiner, and on one occasion, Dr. Budde, there exists ample evidence to support the commission's findings.
Accordingly, we hereby affirm the judgment of the court of appeals.
Judgment affirmed.
CELEBREZZE, C.J., SWEENEY, LOCHER, HOLMES and C. BROWN, JJ., concur.
DOUGLAS and WRIGHT, JJ., concur in judgment only.