Opinion
No. 88-1795
Submitted March 28, 1989 —
Decided July 12, 1989.
Workers' compensation — Rehearing granted — Employer entitled to reimbursement from Surplus Fund under R.C. 4123.515, when — Temporary total compensation paid subsequent to permanency finding.
APPEAL from the Court of Appeals for Franklin County, No. 88AP-43.
ON REHEARING.
Appellant-claimant ("claimant"), Robert H. Love, sustained injury within the course of and arising from his employment with appellee, Peabody Coal Company, and received temporary total disability compensation for resultant periods of work missed. In late 1984, appellee challenged the continued payment of compensation, alleging that claimant's condition had become permanent.
Following a November 5, 1984 hearing, an Industrial Commission ("commission") district hearing officer found that claimant's condition had become permanent. Approximately two weeks later, claimant filed a motion for permanent total disability compensation. Following a series of appeals and a second motion to terminate compensation, the commission eventually continued temporary total disability benefits to May 6, 1987.
Appellee filed an action in mandamus in the Court of Appeals for Franklin County seeking to vacate the commission's orders. Appellee alleged that the commission abused its discretion in continuing temporary total disability compensation subsequent to November 5, 1984, despite a finding that the claimant's condition had become permanent. The appellate court agreed and issued the writ, finding "[t]he commission did not reverse the findings of permanency but extended temporary total disability compensation solely on the basis of claimant's pending application for permanent total disability compensation. The orders continuing such compensation are based upon medical evidence which clearly does not support said compensation."
On appeal as of right before this court, the commission conceded that compensation was continued pursuant to a long-standing commission policy which provided that hearing officers, in their discretion, could continue temporary total compensation, despite evidence of permanency, during the pendency of an application for permanent total disability compensation where the applicant appeared to meet the permanent total disability criteria. That policy was subsequently invalidated in State, ex rel. Eaton Corp., v. Lancaster (1988), 40 Ohio St.3d 404, 534 N.E.2d 46. The decision also denied employer Eaton's request for Surplus Fund reimbursement under R.C. 4123.515 for all monies paid subsequent to the permanency finding. Pursuant to Eaton, this cause was remanded to the commission for further proceedings thereunder. (See 41 Ohio St.3d 5, 534 N.E.2d 347.)
The cause is now before this court upon the allowance of a motion for rehearing.
Vorys, Sater, Seymour Pease, Sandra J. Anderson and Walter H. Goodwin, for appellee.
Anthony J. Celebrezze, Jr., attorney general, Michael L. Squillace and Merl H. Wayman, for appellant Industrial Commission.
Larrimer Larrimer and David H. Swanson, for appellant Robert H. Love.
We hereby grant appellee's motion for rehearing. Upon reconsideration, we hereby grant appellee's request for reimbursement from the statutory Surplus Fund for all monies paid subsequent to the commission's order finding that claimant's condition had become permanent.
Judgment accordingly.
MOYER, C.J., SWEENEY, HOLMES, DOUGLAS, WRIGHT, H. BROWN and RESNICK, JJ., concur.
I am pleased to see the majority now adopt the position set forth in my concurrence (joined in by Justice Sweeney) in State, ex rel. Eaton Corp., v. Lancaster (1988), 40 Ohio St.3d 404, 416-417, 534 N.E.2d 46, 58.
SWEENEY, J., concurs in the foregoing concurring opinion.