Opinion
No. 85-544
Decided February 5, 1986.
Workers' compensation — Order terminating temporary total disability benefits upheld, when — Commission finds that claimant returned to "substantially gainful remunerative employment."
APPEAL from the Court of Appeals for Franklin County.
Appellee, William D. Nye, was employed by appellant, the Goodyear Tire Rubber Company, from 1969 to 1979. In late 1978, appellee began experiencing bronchial difficulty which was determined to be caused by exposure to chemicals during his employment. In May 1979, appellee's workers' compensation claim was allowed for the occupational disease of "acute industrial bronchitis." Appellee received temporary total disability benefits from appellant, a self-insured employer, from May 24, 1980 until May 2, 1983.
On April 1, 1983, appellant filed a motion with the commission challenging appellee's continued entitlement to temporary total disability benefits. The motion claimed that appellee was self-employed and no longer entitled to disability benefits. In support of this motion appellant submitted an investigator's report prepared by American Sentry Protection Service which concluded that appellant was self-employed as a furniture reupholsterer.
An investigator from American Sentry first learned of appellant's reputation as a reupholsterer and then went to appellee's house with a chair he said he wanted reupholstered. Appellee's wife took the chair on appellee's behalf and told the investigator when it would be finished. The investigator then arranged a meeting with appellee and told him that he was going to open a furniture manufacturing business and wanted to hire appellee as a reupholsterer. During the course of conversations about this purported employment opportunity, appellee told the investigator he was earning $10,000 a year in the reupholstery business, was building an extension onto his home for a shop and was teaching his son the trade of reupholstery.
A commission investigator incorporated the American Sentry report into his own investigation report and also included affidavits from appellee and his son. The affidavits indicated that appellee had performed his services for barter. The investigator also acquired invoices from appellee's supplier of upholstery materials in an effort to establish that appellee had engaged in the reupholstery business. The commission investigator concluded that "* * * between 10 June 1980 — 25 November 1981, William Dale NYE [ sic], with the assistance of William David Nye [appellee's son], apparently did reupholstering repairs in exchange for bartered materials."
The claim was heard before a district hearing officer who concluded, in an order dated May 4, 1983, that appellee was engaged in substantially gainful remunerative employment for the period after June 9, 1980, and from that date erroneously received temporary total disability benefits. The basis for the decision was given as the printed form language, "The decision in this claim is based on the evidence in the file and/or evidence adduced at the hearing."
Appellee then appealed to the regional board of review which also conducted a hearing and on July 13, 1983 entered an order indicating that the order of the district hearing officer was affirmed in all respects. The basis for this decision was also the form-printed "evidence in the file and/or evidence adduced at the hearing." Appellee attempted a further appeal to the commission which was refused by order of September 8, 1983. No basis was cited for this decision.
The order also contained the date of September 6, 1983 and this date was referred to by the court of appeals in its judgment entry.
Appellee then filed an action in mandamus in the Court of Appeals for Franklin County alleging that the commission's order terminating his temporary total disability benefits was an abuse of discretion. The court of appeals conducted a hearing before a referee and allowed the writ. The cause is now before the court upon an appeal as of right.
Chester T. Freeman Co., L.P.A., and William R. Polhamus, for appellee.
Vorys, Sater, Seymour Pease, Robert A. Minor and P. Douglas Barr, for appellant.
The district hearing officer terminated appellee's temporary total disability benefits based upon his conclusion that appellee was engaged in "substantially gainful remunerative employment." The court of appeals allowed the writ herein citing several reasons.
First, the court of appeals determined that the commission's orders were not in compliance with the rule set forth in State, ex rel. Mitchell, v. Robbins Myers, Inc. (1983), 6 Ohio St.3d 481, 483-484, that "* * * district hearing officers, as well as regional boards of review and the Industrial Commission, must specifically state which evidence and only that evidence which has been relied upon to reach their conclusion, and a brief explanation stating why the claimant is or is not entitled to the benefits requested."
In State, ex rel. Hudson, v. Indus. Comm. (1984), 12 Ohio St.3d 169, 171, fn. 1, we declined to apply Mitchell retroactively. Thus, the issuance of a writ of mandamus compelling the commission to comply with Mitchell is inappropriate where the order was made before September 7, 1983. In the case at bar, the only order entered after that date is the order of the Industrial Commission declining further appeal, dated September 8, 1983. That order, however, did not pertain to the actual denial of benefits, but only to the denial of further appeal. The order is technically not in compliance with Mitchell because no reason is given for denying further appeal to the full commission. However, in view of the fact that the order is procedural only and was made only one day after the announcement of Mitchell, we will not issue a writ to compel the commission to state its reasons for denying further appeal.
Turning to the merits of this action, the court of appeals held that the termination of appellee's temporary total disability benefits was not authorized under State, ex rel. Ramirez, v. Indus. Comm. (1982), 69 Ohio St.2d 630, 632 [23 O.O.3d 518], wherein we held that a claimant is entitled to temporary total disability benefits "* * * until one of the following three things occur: (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 court of appeals construed part (1) of this test to authorize the continued payment of temporary total disability benefits until the claimant has returned to his former position of employment.
We agree with appellant that this interpretation is erroneous. If accepted, it would permit the payment of temporary total disability benefits to a claimant who has chosen to return to full-time work at a job other than his former employment. In such a case, the claimant is no longer suffering the loss of earnings for which temporary total disability benefits are intended to compensate. State, ex rel. Rubin, v. Indus. Comm. (1938), 134 Ohio St. 12 [11 O.O. 382], and Felske v. Daugherty (1980), 64 Ohio St.2d 89 [18 O.O.3d 313]. This interpretation is particularly compelling in view of the fact that permanent partial disability benefits under R.C. 4123.57 in the nature of damages are available to a claimant who has returned to work.
The district hearing officer recommended that appellee apply for temporary partial benefits when the officer entered his order terminating appellee's temporary total disability benefits. This refers to benefits under R.C. 4123.57(A).
In the case at bar, the commission determined that appellee had returned to "substantially gainful remunerative employment" i.e., fulltime work. That determination was amply supported by the investigator's report. It is not the function of the court of appeals or this court to substitute its factual findings for that of the commission in a mandamus action challenging a commission order. See State, ex rel. GF Business Equip., Inc., v. Indus. Comm. (1981), 66 Ohio St.2d 446 [20 O.O.3d 379]; State, ex rel. Kilburn, v. Indus. Comm. (1982), 1 Ohio St.3d 103.
For the same reason, we think this case an inappropriate one for determining whether Ohio should adopt the "odd-lot" doctrine. The commission did not find that appellee was engaged in occasional or part-time employment.
For these reasons the judgment of the court of appeals is reversed and the writ is denied.
Judgment reversed and writ denied.
CELEBREZZE, C.J., SWEENEY, LOCHER, HOLMES, C. BROWN, DOUGLAS and WRIGHT, JJ., concur.