Opinion
No. 83-584
Decided June 27, 1984.
Workers' compensation — Commission order not supported by the evidence, when.
APPEAL from the Court of Appeals for Franklin County.
Appellant, Pamela Stanforth, a.k.a. Pamela Trenary, was injured when a lawn spreader fell on her back while in the course of her employment with appellee, Washington Distributors, Inc. On October 15, 1980, appellant filed a workers' compensation claim which was allowed for lumbar strain. She was awarded temporary total disability benefits for the period of September 4, 1980 through October 14, 1980. Her request for additional temporary total disability benefits to April 6, 1981 was denied.
Appellant appealed the decision denying benefits beyond October 14, 1980 to the regional board of review and the Industrial Commission, both of which affirmed the original order.
All the medical evidence before the commission was supplied by Dr. Willis Kubiac, appellant's treating physician. Included was a report from appellant's hospital records dated September 4, 1980 which stated in part:
"* * * The nature of this womans' [ sic] complaint in relation to [the] accident sounds certainly justifiable for contusion type of strain to the low back and her findings, though not dramatic, also support this opinion. Her unilateral episodes of numbness must be some functional overlay. I think she should be accepted as a lumbar strain, not necessarily disabling. Support to her back will be of some value and this should be prescribed. * * * Her present disability is partial and not total and will be viewed as such by the industrial commission. I do not see indication for hospitalization or myelogram or surgical solution to this womans' [ sic] problem. I would try to support and re-evaluate her at intervals."
Also before the commission was a form comparable to a C-84 supplied by the employer and completed by Dr. Kubiac on October 1, 1980. In one of the questions, the employer requested that Dr. Kubiac indicate the date appellant's disability would terminate. Dr. Kubiac's response was "10-15-80 (tent)."
On April 20, 1981, a supplemental C-84 form was prepared by Dr. Kubiac indicating that appellant could return to work on April 6, 1981. In a subsequent hospital clinic report contained in the file and dated June 22, 1981, Dr. Kubiac mentioned that appellant "* * * was released for work about 2 months ago."
Appellant brought this mandamus action in the court of appeals alleging that there was no evidence to support the commission's decision and seeking the issuance of a writ to compel the commission to grant the extended temporary total benefits requested.
The court of appeals denied the writ and the cause is now before the court upon an appeal as of right.
Ms. Mary Jo Cusack, for appellant.
Messrs. Guren, Merritt, Feibel, Sogg Cohen and Mr. Leon Friedberg, for appellee, Washington Distributors, Inc.
Mr. Anthony J. Celebrezze, Jr., attorney general, and Mr. Dennis L. Hufstader, for appellee, Industrial Commission.
Appellees argue and the court of appeals found, that Dr. Kubiac's report of September 4, 1980 was evidence to support the commission's decision not to extend appellant's temporary total disability benefits to April 6, 1981.
We disagree because the report of September 4, 1980 contained no opinion as to the duration of appellant's temporary total disability. The only evidence directed to that issue were the reports of Dr. Kubiac dated October 1, 1980, and April 20, 1981. In the first report Dr. Kubiac tentatively found that appellant's disability would terminate on October 15, 1980. Subsequently, he modified his opinion and determined that appellant could be released for work on April 6, 1981. This opinion has not been retracted or modified by Dr. Kubiac and no contrary medical evidence as to the duration of appellant's temporary total disability was before the commission.
Where there is no evidence upon which the commission could base its decision, an abuse of discretion is shown and mandamus becomes appropriate. State, ex rel. Hutton, v. Indus. Comm. (1972), 29 Ohio St.2d 9, 13 [58 O.O.2d 66].
Accordingly, the judgment of the court of appeals is reversed and the writ is allowed to compel the commission to extend appellant's temporary total disability award to April 6, 1981.
Judgment reversed and writ allowed.
CELEBREZZE, C.J., W. BROWN, SWEENEY, LOCHER, C. BROWN and J.P. CELEBREZZE, JJ., concur.
HOLMES, J., dissents.