State ex rel. Youghiogheny & Ohio Coal Co. v. Kohler
| Decision Date | 05 December 1990 |
| Docket Number | No. 89-816,89-816 |
| Citation | 564 N.E.2d 76,55 Ohio St.3d 109 |
| Parties | The STATE, ex rel. YOUGHIOGHENY & OHIO COAL COMPANY, Appellee, v. KOHLER, Appellant. |
| Court | Ohio Supreme Court |
Robert D. Kohler, appellant, injured his neck while in the course of and arising from his employment with the Youghiogheny & Ohio Coal Company ("Y & O"), appellee. The Industrial Commission allowed Kohler's claim for "sprain, cervical spine."
Eventually, Y & O moved to terminate temporary total compensation by reason of permanency. Upon a subsequent hearing, the district hearing officer ("DHO") found that Kohler's "temporary disability may now be permanent." Nevertheless, she ordered that Kohler continue to receive temporary total compensation under the commission's resolution of July 26, 1982, which permitted payment of temporary total benefits until a pending permanent compensation application had been decided.
In reaching her decision, the DHO considered the reports of Drs. Emmanuel J. Casiano, John W. Cunningham, and Mark E. Weaver. Dr. Casiano felt that Kohler was permanently and totally disabled. Dr. Cunningham concluded that Kohler had " * * * attained a maximal level of medical recovery and a level of stabilization and plateau * * * and that he has a 15 to 18 percent permanent and partial impairment * * *." Dr. Weaver felt that Kohler had reached " * * * maximum level of medical recovery for his injury and his condition may now be permanent due to the allowed conditions in * * * [his] claim."
The regional board of review modified the DHO's order by continuing temporary total compensation upon Kohler's continuing submission of medical evidence and until Kohler's application for permanent total disability had been heard. The staff hearing officers of the commission denied Y & O's appeal and affirmed the order of the regional board.
Y & O then filed a complaint for a writ of mandamus in the Court of Appeals for Franklin County. The court of appeals ruled that all the medical evidence addressing the permanency of Kohler's condition indicated that his condition had become permanent. The court vacated the commission's order and directed it to find that claimant's condition had become permanent. The court remanded the case to the commission for further proceedings consistent with State, ex rel. Eaton, v. Lancaster (1988), 40 Ohio St.3d 404, 534 N.E.2d 46. After this judgment, Y & O ceased paying benefits to Kohler.
Kohler now appeals to this court as of right.
Hanlon, Duff & Paleudis Co., L.P.A., and John G. Paleudis, St. Clairsville, for appellee.
Larrimer & Larrimer and David H. Swanson, Columbus, for appellant.
Kohler first argues that a claimant's condition is not permanent when he has reached maximum medical improvement, as ruled by the court of appeals. Kohler contends that the word "medical" does not appear in the case law and that permanency, instead, results when a claimant has reached maximum physical improvement. We agree with the court of appeals.
Permanency relates to the perceived longevity of the condition. Vulcan Materials Co. v. Indus. Comm. (1986), 25 Ohio St.3d 31, 25 OBR 26, 494 N.E.2d 1125. A permanent condition is one " * * * which will, ' * * * with reasonable probability, continue for an indefinite period of time without any present indication of recovery therefrom.' " Id. at 33, 25 OBR at 27, 494 N.E.2d at 1127, quoting Logsdon v. Indus. Comm. (1944), 143 Ohio St. 508, 28 O.O. 429, 57 N.E.2d 75.
In State, ex rel. Eldridge, v. Indus. Comm. (1988), 35 Ohio St.3d 189, 519 N.E.2d 650, we held that the phrase "maximum recovery after this period of time" constituted some evidence that the claimant's condition had become permanent. In State, ex rel. Cassity, v. Montgomery Cty. Dept. of Sanitation (1990), 49 Ohio St.3d 47, 550 N.E.2d 474, we held that the assessment worded "[claimant has a] poor prognosis for any improvement" comported with the Vulcan Materials definition of "permanency."
Accordingly, we regard the conclusions that Kohler had " * * * attained a maximal [or...
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