Opinion
No. 86-1198
Decided February 24, 1988.
Workers' compensation — Permanency of impairment — Commission's determination reinstated, when.
APPEAL from the Court of Appeals for Franklin County.
On March 30, 1981, appellee, Richard E. Delk, was injured during the course of his employment with appellant, the Avco New Idea Corporation (now d.b.a. Paul Revere Corporation). Appellee timely filed a claim for workers' compensation benefits and the commission recognized appellee's claim for "[a]cute lumbosacral sprain, thoracic sprain, bilateral sciatic neuritis descending both lower extremities, discopathy of the L-5, S-1 disc space." Pursuant to this finding, appellee received temporary total disability compensation from March 31, 1981 through January 3, 1982. Appellee has not received any temporary total disability compensation since this time.
On December 22, 1981, appellee injured his back and legs when he slipped and fell on some snow. As a result of this incident, appellant requested a hearing to terminate appellee's receipt of temporary total disability benefits on the basis that appellee's current injuries were the result of a non-occupational accident. In support of this motion, appellant submitted a report of Dr. Thomas F. Goodall, who examined appellee on December 29, 1981 and concluded that appellee's current medical problems were due to his non-occupational slip-and-fall accident. On May 19, 1982, a staff hearing officer held that appellee be awarded temporary total disability compensation from the date of the last payment through January 3, 1982, and no further payment was to be awarded without formal hearing.
Shortly thereafter, appellee was examined by his then treating physician, Dr. Daniel E. Braunlin, on June 30, 1983, and by Dr. Seldon Hamilton, an Industrial Commission specialist, on May 17, 1983. Both doctors concurred in their opinion that appellee was permanently and partially impaired. Pursuant to these reports, on September 28, 1983, a hearing officer of the commission held that appellee suffered from a permanent partial disability of thirty-five percent.
On April 12, 1984, more than two years after the commission terminated appellee's receipt of temporary total disability benefits, appellee filed an application to reactivate his claim. Among other things, this application sought the reinstatement of temporary total disability benefits from the previous termination date of January 3, 1982. In support of this application, appellee submitted the report of his treating physician, Dr. C. William Johnston, dated March 15, 1984, who speculated that it was doubtful that appellee would ever return to his former position of employment. In a report dated June 1, 1984, Dr. Braunlin also expressed misgivings as to appellee's ability to perform the tasks of his previous position. On June 22, 1984, a district hearing officer denied appellee's application to reactivate his claim in its entirety on the basis of the intervening non-occupational slip and fall accident of December 22, 1981. Appellee appealed this decision to the Dayton Regional Board of Review which affirmed the judgment of the district hearing officer in all respects. However, in an order mailed on February 4, 1985, the commission vacated the order of the regional board of review and denied appellee's requested temporary total disability benefits for the reason that appellee's disability had become a permanent condition.
On May 3, 1985, appellee initiated this mandamus action in the Court of Appeals for Franklin County seeking an order compelling the commission to find that appellee is entitled to temporary total disability compensation. On June 26, 1986, the appellate court issued its decision granting the requested writ of mandamus.
The cause is now before this court upon an appeal as a matter of right.
Thompson, Meier Dersom and Thomas D. Thompson, for appellee.
Vorys, Sater, Seymour Pease, Thomas M. Taggart and William G. Porter II, for appellant.
In order to successfully challenge the Industrial Commission's determinations as to the extent of a claimant's disability in an action in mandamus, the moving party must demonstrate that the commission's decision was rendered without some evidence in support thereof. State, ex rel. Burley, v. Coil Packing, Inc. (1987), 31 Ohio St.3d 18, 31 OBR 70, 508 N.E.2d 936; State, ex rel. Elliott, v. Indus. Comm. (1986), 26 Ohio St.3d 76, 26 OBR 66, 497 N.E.2d 70. The appellate court below determined that appellee had sustained this burden by demonstrating that the commission had no evidence before it indicating that appellee's disability had become permanent "(in the sense that he would never be able to return to his former position of employment) prior to March 15, 1984."
We begin our review by noting that the appellate court's judgment in this case was rendered without benefit of this court's recent decision in Vulcan Materials Co. v. Indus. Comm. (1986), 25 Ohio St.3d 31, 25 OBR 26, 494 N.E.2d 1125. In Vulcan, this court held that the commission need not consider whether a claimant could return to his former position of employment when determining the permanency of a disability. Hence, the appellate court's focus upon this consideration was erroneous.
The Industrial Commission cites the report of Dr. Johnston and the June 1, 1984 report of Dr. Braunlin as supportive of its finding of permanency. Both of these reports express misgivings as to appellee's ability to ever perform the tasks of his former position of employment, but neither specifically addresses the pivotal issue of whether the impairment is permanent. However, when one reads Dr. Braunlin's report of June 1, 1984, in conjunction with his report filed on June 30, 1983, his opinion as to the status of appellee's impairment becomes clear. In the 1983 report, Dr. Braunlin specifically states that the appellee suffers from a permanent partial impairment of twenty-three percent. There is nothing in Dr. Braunlin's 1984 report which disputes his earlier opinion.
We find that such evidence is supportive of the commission's determination. Accordingly, we reverse the judgment of the court of appeals and reinstate the decision of the Industrial Commission.
Judgment reversed.
MOYER, C.J., SWEENEY, LOCHER, HOLMES, DOUGLAS and WRIGHT, JJ., concur.
H. BROWN, J., not participating.