Opinion
No. 85-769
Decided February 19, 1986.
Workers' compensation — Temporary disability benefits — No evidence that claimant unable to work — Remand to Industrial Commission to take evidence.
APPEAL from the Court of Appeals for Franklin County.
Relator-appellant, Mary M. Evans, was injured on June 16, 1980 while employed by respondent Pepsi-Cola Bottling Company of Columbus, Division of G J Pepsi-Cola Bottlers ("Pepsi"). Evans filed an application for payment of compensation and medical benefits with the Bureau of Workers' Compensation, in which she described as follows the accident which caused her injury:
"I was taken off [the] inspector job and put on [the] machine running the palatizer [ sic]. A skid of pepsi [ sic] jamed [ sic] with eighty some cases of pepsi [ sic] on it. I put my back up against the skid of pepsi [ sic] pushed with my right leg up against a metal bar and pushed[.] [W]hen I did I felt something in my back slip * * *." The bureau allowed Evans' claim for lumbar strain and cervical disability as occurring in the course of and arising out of Evans' employment, and awarded temporary total disability benefits.
On July 23, 1982, respondent employer filed a motion with the bureau questioning continued payment of temporary total disability benefits, and alleging that Evans was receiving minimal treatment and had not returned to work. The hearing officer ordered that Evans be examined by an orthopedist to determine the "extent of continuing disability, permanency thereof, and ability to return to her former position of employment, whether on a full or partial basis. * * *"
Evans was examined by Dr. John Q. Brown, who reported that "* * * [t]his claimant's job is described as an inspector. She states that her job required that she do whatever she was told to do and when the skid stuck in the palletizer she was instructed to put her back against it and push with her foot against the metal bar. This is what she was doing when she sustained her injury. * * * There are very few medical reports in the file and it would be my opinion from this examination that she should not be pushing against the skid on the palletizer. * * * The positive objective findings are really minimal in this patient. On the basis of her neck complaints I would consider her to have a TPI of 5% and for the lumbar area I would consider her to have a TPI of 15% for a total of 20% TPI on the allowed claim." Based on that report, the hearing officer issued a March 21, 1983 order reducing Evans' benefits to temporary partial compensation at the rate of forty percent impairment. On appeal, the Columbus Regional Board of Review affirmed the order in all respects, as did the appellee, Industrial Commission, which stated:
"Medical evidence, particularly the report of Dr. Brown, indicates that claimant can substantially return to her former position of employment.
"The finding and order is based on the evidence on file and the evidence adduced at the hearing."
Evans then filed the instant mandamus action in the court of appeals requesting that it issue a writ ordering the Industrial Commission to find that relator is entitled to temporary total disability benefits. The court of appeals denied the writ, finding that the Industrial Commission's determination that relator was not temporarily and totally disabled was adequately based upon Dr. Brown's medical report. The court further stated, "[t]he Commission has the authority to weigh the evidence before it and could have construed Dr. Brown's report as evidence that relator could return to her former position of employment subject to a cautionary limitation regarding pushing against jammed skids. * * * Relator should apply to work for respondent-employer. If the employer has no position open to employ, or if relator is physically unable to resume her former employment, temporary total disability benefits shall be continued to be paid to her by the Industrial Commission according to law. * * *"
The cause is now before this court upon an appeal as of right.
Michael J. Muldoon, for appellant.
Anthony J. Celebrezze, Jr., attorney general, Janet E. Jackson and Gerald H. Waterman, for appellee.
As this court stated in State, ex rel. Ramirez, v. Indus. Comm. (1982), 69 Ohio St.2d 630, 632 [23 O.O.3d 518], R.C. 4123.56 provides that an employee is entitled to be paid temporary disability benefits 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. The statute specifically refers to the capability of an employee of "returning to his former position of employment."
Although the court of appeals in this case found that the Industrial Commission had not abused its discretion because it determined that relator was able to return to most of the responsibilities of her former position of employment on the strength of Dr. Brown's report, a close reading of that report reveals that Dr. Brown did not state that claimant was capable of returning to her former position of employment. Indeed, Dr. Brown's report states specifically that from his examination, Evans "should not be pushing against the skid on the palletizer." As we noted in State, ex rel. Horne, v. Great Lakes Constr. Co. (1985), 18 Ohio St.3d 79, 80, "[t]he phrase `and unable to work' means the workers' compensation claimant is unable to return to his former position of employment. The phrase `former position of employment' means the position the claimant held when he was injured." Thus, since the only evidence relied upon by the Industrial Commission below stated that the claimant should not perform the same task she was required to perform prior to her injury, there was no evidence upon which the Industrial Commission could rely for its determination that Evans is now able to work within the meaning of the workers' compensation statutes. Accordingly, the Industrial Commission abused its discretion, and the remedy of mandamus could be available to Evans. State, ex rel. Hutton, v. Indus. Comm. (1972), 29 Ohio St.2d 9 [58 O.O.2d 66].
Therefore, we reverse the judgment of the court of appeals, grant the writ, and remand the cause to the Industrial Commission to take evidence and to consider whether on March 21, 1983 relator was capable of returning to her former position of employment.
Judgment reversed, writ granted and cause remanded.
CELEBREZZE, C.J., SWEENEY, C. BROWN and DOUGLAS, JJ., concur.
LOCHER and WRIGHT, JJ., concur in judgment only.
HOLMES, J., dissents.
I concur in judgment only, as I cannot agree with the majority's analysis for the reasons set forth in my dissents in State, ex rel. Ramirez, v. Indus. Comm. (1982), 69 Ohio St.2d 630, 635 [23 O.O.3d 518], and State, ex rel. Horne, v. Great Lakes Constr. Co. (1985), 18 Ohio St.3d 79, 81.
WRIGHT, J., concurs in the foregoing opinion.
This court should at this time overrule the unfortunate law set forth in State, ex rel. Ramirez, v. Indus. Comm. (1982), 69 Ohio St.2d 630 [23 O.O.3d 518], and return to the sensible interpretation and reasoning as to what constitutes temporary total disability as contained in the dissent of Justice Locher in Ramirez. Short of that, this court should properly apply the abuse of discretion test and not reweigh the evidence that was before the commission.
In the instant case, the commission was faced with conflicting medical reports concerning relator's ability to return to her former position of employment. The commission determined that Dr. Brown's medical report supported a finding that relator could substantially return to her former position of employment. Dr. Brown's report is substantial and probative evidence supporting the commission's finding.
Dr. Brown's report specifically notes relator's employment and the details surrounding the injury. The commission has the authority to weigh the evidence before it and could have construed Dr. Brown's report as evidence that relator could return to her former position of employment subject to a cautionary limitation regarding pushing against jammed skids. Case law and commission guidelines provide that the function of a doctor is to determine medical impairment and that the commission is entrusted with the responsibility of determining disability. Meeks v. Ohio Brass Co. (1984), 10 Ohio St.3d 147. The commission accordingly determined that relator was no longer temporarily and totally disabled based upon the medical report of Dr. Brown. See, also, State, ex rel. Petros, v. Connor (1984), 12 Ohio St.3d 176, wherein the court held that a medical report finding a temporary partial impairment was sufficient to support a determination of the commission terminating temporary total disability benefits.
The Industrial Commission, as in Petros, resolved the disputed factual situation before it, and this court should not disturb that result. I would affirm the judgment of the court of appeals.