Summary
In Roope, the claimant, when starting his lawnmower at home, appeared to have aggravated a preexisting condition for which he had received temporary total disability compensation.
Summary of this case from State ex Rel. Evans v. Indus. CommOpinion
No. 82-428
Decided December 29, 1982.
Workers' compensation — Decision of Industrial Commission to grant or deny additional compensation — Aggravation of previously existing condition without intervening trauma — Question as to extent of disability — Not appealable, when.
O.Jur 2d Workmen's Compensation §§ 151, 174.
A decision of the Industrial Commission to grant or deny additional compensation for a previously allowed claim, when there is no intervening trauma but merely aggravation of a previously existing condition, is a decision which goes to a claimant's extent of disability, and is not appealable. ( Gilbert v. Midland-Ross Corp., 67 Ohio St.2d 267 [21 O.O.3d 168], distinguished.)
APPEALS from the Court of Appeals for Franklin County.
Claimant-appellant and cross-appellee, John W. Roope, commenced this mandamus action in the court of appeals on July 24, 1981. He seeks a writ to compel the Industrial Commission, appellee and cross-appellee, to issue an order requiring his employer, appellee and cross-appellant, Roadway Express, Inc., to pay temporary total compensation for periods of disability suffered by claimant in 1979 and 1980.
On October 3, 1978, claimant aggravated a pre-existing low back condition while working as a truck driver. His truck hit a dip in the road causing him to pitch upward and to the right, clear of the seat, injuring his lower back when he struck the seat. Claimant received temporary total disability compensation for the period October 10, 1978 through October 25, 1978. During the ten months between this first period of disability and the subsequent one for which compensation is sought here, claimant continued under treatment by his physician, Dr. Alan L. Longert, an orthopedist.
Sometime in August 1979, after starting his lawnmower at home, claimant felt a sharp pain in his lower back which doubled him over; he was unable to straighten up. Subsequently he was off work from August 19, 1979 to September 24, 1979 and from October 19, 1979 to about April 28, 1980. In November 1979 surgery was performed and an extruded disc was removed from claimant's lower back.
On November 15, 1979, claimant filed a motion under his old claim number requesting that temporary total payments be made for the periods he was unable to work. The form used (C-86) contained a printed legend stating that it is to be employed to notify the Bureau of Workers' Compensation and the commission "of action which the party filing the Motion asserts should be taken in the claim to which this Motion attaches. This form is not to be filed in place of an Application to Re-Activate Claim (C-85a) * * *." A hearing was held on the motion on December 7 and the district hearing officer ordered temporary total compensation for the periods sought, based on the medical report of Dr. Longert. On January 31, 1980, the Regional Board of Review affirmed that order.
The employer appealed to the Industrial Commission, which referred the file for medical review of the relationship of the 1979 lawnmower incident to the allowed condition resulting from the 1978 accident. On March 4, claimant was examined by Dr. Thomas L. Meyer, Jr., an orthopedist, at the request of Roadway Express. Pursuant to the commission order, Dr. Daniel E. Braunlin reviewed the file, which included the reports of Drs. Longert and Meyer. The commission vacated the orders of the regional board and hearing officer on November 12, 1980, and denied the C-86 motion filed by claimant. Following denial of a motion for reconsideration, claimant brought the instant action in mandamus with the court of appeals. On October 14, 1981, Roadway Express filed a motion to dismiss, contending that the decision of the commission was not as to extent of disability, so that a mandamus action was not proper, claimant having an adequate remedy at law by way of appeal under R.C. 4123.519. This motion was overruled December 1, and following a hearing on December 15, the court of appeals denied the requested writ. Claimant appeals, contending the decision of the commission was an abuse of discretion, and the employer cross-appeals, urging the decision of the commission was not subject to a mandamus action.
The cause is now before this court on appeals and cross-appeals as of right.
Daniel D. Connor Co., L.P.A., Mr. Bruce L. Hirsch and Mr. Daniel D. Connor, for appellant and cross-appellee, John W. Roope.
Messrs. Vorys, Sater, Seymour Pease and Mr. Robert A. Minor, for appellee and cross-appellant, Roadway Express, Inc.
Mr. William J. Brown, attorney general, and Mr. Gerald H. Waterman, for appellee and cross-appellee, Industrial Commission.
The first issue to be decided is whether the commission's order was appealable. Where an appeal may be taken from an order of the commission, an action in mandamus may not be maintained. State, ex rel. Benton, v. Columbus Southern Ohio Elec. Co. (1968), 14 Ohio St.2d 130 [43 O.O.2d 238], paragraph one of the syllabus. Since R.C. 4123.519 provides that decisions of the commission, other than those as to the extent of disability, are appealable, we must determine whether the decision which is the subject of this mandamus action was "as to extent of disability" so that a mandamus action properly lies.
The commission determined that claimant was not entitled to additional compensation for the industrial injury suffered October 3, 1978. This court recently held that a decision of the commission which goes to a claimant's right to participate in the fund is appealable; however, a decision which merely extends the period of time for which a claimant will receive benefits concerns the extent of disability and is not appealable. Gilbert v. Midland-Ross Corp. (1981), 67 Ohio St.2d 267 [21 O.O.3d 168], paragraph one of the syllabus. Here, claimant's right to participate in the fund as a result of his October 3, 1978 injury was determined in a previous decision not before this court. The November 12, 1980 commission order refused to extend the period of time for which claimant would receive benefits. Applying the language in the Gilbert opinion quoted above, it is apparent such a decision concerns extent of disability and is not appealable. Therefore, an action in mandamus is appropriate.
Cross-appellant vigorously argues that this case is controlled by paragraph two of the syllabus in Gilbert, which states:
"A decision to reactivate a previously allowed claim now dormant, when there has been an intervening trauma, is, in effect, a decision going to claimant's right to participate in the fund for an injury or impairment not previously claimed or passed upon and is appealable."
The instant case however, is distinguishable from the situation addressed in Gilbert. In that action, the claimant suffered an injury at work after returning from a period of disability for a previous work-related injury. He filed a new claim for the second injury and sought to reactivate the earlier claim. Here, claimant suffered an exacerbation at home of his previous injury, and filed a motion for modification of the compensation order in the 1978 injury claim. There were not two separate work-related accidents or accident claims, as in Gilbert. That decision emphasized that when an intervening trauma arising from a second industrial accident results in an attempt to reactivate an earlier, dormant claim, the worker seeks, in effect, a decision granting the right to participate for an injury or impairment not previously claimed or passed upon. Gilbert, supra, at 272. Claimant here did not assert that an intervening trauma or later compensable claim exists. Rather, he sought a determination that the back injury sustained in 1978 was more serious than originally claimed, resulting in an additional period of disability. Such a claim is one as to extent of disability.
Given the appropriateness of mandamus in this case, we must next determine if the commission abused its discretion by denying claimant's motion for additional compensation. In support of his petition, claimant contends certain misstatements in Dr. Meyer's report impugns its reliability, so that it must be discounted as evidence. Further, claimant maintains Dr. Braunlin's report cannot be considered as evidence. Rather, claimant urges that only his own physician, Dr. Longert, presented a report on which the commission may rely.
The evidence before the commission consisted of three physicians' reports, those of Drs. Longert, Meyer and Braunlin. Both Drs. Meyer and Braunlin concluded that the acute extrusion of a lumbrosacral disc from which claimant suffered occurred at the time of the home episode, and not as a result of the 1978 accident at work. Even claimant's own doctor, Dr. Longert, did not dispute that his condition may have been caused by factors other than the industrial injury. His report concluded, in part:
"It is my opinion that the patient's present condition certainly is a recurrence or exacerbation of his previous condition. The industrial claim, which was allowed in 1978, for recurrent injury to his back was without question at least contributing, if not the only contributing factor, to his subsequent radiculopathy, which was recognized approximately one year later. * * *"
Our examination of the reports before the commission leads to the conclusion that reliable, probative and substantial evidence in accordance with the law exists to support a factual finding and determination that claimant's period of disability did not result from his industrial injury of 1978. The claimed errors in the report of Dr. Meyer do not rise to such a level as to impute prejudice or unreliability on his part. Nor does Dr. Longert's report require the commission to conclude that the period of subsequent disability was merely an extension of the previous disability caused by the industrial injury. Accordingly, there was no evidence to support claimant's contention that the commission abused its discretion by denying his motion for additional compensation, and the judgment of the court of appeals denying the requested writ is hereby affirmed.
Judgment affirmed.
CELEBREZZE, C.J., W. BROWN, SWEENEY and LOCHER, JJ., concur.
I agree with the majority there was sufficient evidence for the commission to determine the claimant's period of disability did not result from his industrial injury. In my view, however, the claimant had an adequate remedy at law by way of appeal. I, therefore, would also deny the writ of mandamus as not proper in this case.
An order of the Industrial Commission which determines a claimant's impairment "is not the result of a compensable injury" is a decision as to the claimant's right to participate in the Workers' Compensation Fund and is, therefore, appealable pursuant to R.C. 4123.519. Zavatsky v. Stringer (1978), 56 Ohio St.2d 386 [10 O.O.3d 503]. Inasmuch as the commission decided, in the case at bar, that the claimant's disability was not the result of his industrial injury, and thus not compensable, the commission's decision determined the claimant's right to participate in the fund. The claimant could thus have appealed the commission's decision under R.C. 4123.519.
This court's recent decision in Gilbert v. Midland-Ross Corp. (1981), 67 Ohio St.2d 267 [21 O.O.3d 168], is indistinguishable from the case sub judice. The syllabus in Gilbert states:
"1. A decision of the Industrial Commission which goes to a claimant's right to participate in the fund is appealable; however, a decision which merely extends the period of time for which a claimant will receive benefits concerns the extent of disability and is not appealable.
"2. A decision to reactivate a previously allowed claim now dormant, when there has been an intervening trauma, is, in effect, a decision going to claimant's right to participate in the fund for an injury or impairment not previously claimed or passed upon and is appealable."
Since the commission in the instant case decided not to reactivate a previously allowed claim because the claimant's disability was due to an intervening trauma and not due to a previously compensated injury, the commission's decision went to the claimant's right to participate in the fund, and this case falls squarely within the rule stated in Gilbert.
As the commission has conceded, "this case is directly on point with the relevant facts presented in Gilbert * * *." In Gilbert and the instant case:
(1) both claimants had returned to work following a period of disability attributable to a compensable injury;
(2) both claimants suffered a second injury;
(3) neither claimant was receiving disability at the time of the second injury;
(4) there was no existing period of disability but only a previous period of disability;
(5) both claimants requested compensation for the period of disability following the second injury; and
(6) the commission was faced with a determination of whether the claimant's disabilities were attributable to the first or second injury.
The only difference between the two cases is the setting of the second injury. In Gilbert, the second injury occurred at work, whereas, in the case sub judice, the second injury occurred at home. This difference is irrelevant because in both cases the commission was presented with precisely the same issue, i.e., whether the disability was attributable to claimant's first or second injury. In Gilbert, the commission decided the second period of disability was attributable to the first injury, whereas in the case sub judice they did not. Nevertheless, in both cases, the commission was called upon to decide the identical question of causation, and the underlying theories are exactly the same.
As this court stated in Gilbert at page 271: "The decision in the instant case, though in form a reactivation of a previously allowed claim, is in substance a decision on the right to participate in the fund because it establishes a new period of disability with a new right to receive benefits. Interpreting the commission's order as merely extending the period of disability, as appellants would have us do, ignores the fact that appellant Gilbert was not disabled and not receiving any benefits at the time of the second injury." This reasoning applies with equal force in the instant case. Since the claimant here was not disabled or receiving any benefits at the time of his second injury, his second claim sought to establish a new period of disability and a new right to receive benefits. The commission's decision to disallow the claim was thus a decision to deny the claimant's right to participate in the fund.
It is clear this court's decision in Gilbert is directly on point with the case sub judice, and the result reached in the instant case should be the same in order to be consistent with Gilbert. For this reason, I would hold the claimant had an adequate remedy at law and mandamus is, therefore, not a proper remedy under the circumstances of this case.
HOLMES, J., concurs in the foregoing concurring opinion.