State ex rel. Eberhardt v. Flxible Corp.

Decision Date09 November 1994
Docket NumberNo. 93-705,93-705
Citation640 N.E.2d 815,70 Ohio St.3d 649
PartiesThe STATE ex rel. EBERHARDT, Appellee, v. FLXIBLE CORPORATION et al., Appellants.
CourtOhio Supreme Court

SYLLABUS BY THE COURT

1. Where an attending physician certifies a claimant as temporarily and totally disabled but indicates that there is little hope for improvement in claimant's condition unless treated through rehabilitation, and there is no other medical evidence indicating that claimant has reached the maximum medical improvement, it is an abuse of discretion for the Industrial Commission to deny temporary total disability benefits on the basis that claimant has reached the maximum medical improvement.

2. Where a physician renders an ambiguous opinion regarding a claimant's medical condition but thereafter clarifies the ambiguity, the Industrial Commission may not revive the ambiguity as a basis for rejecting the physician's opinion.

Appellee-claimant, Carl R. Eberhardt, was injured on January 23, 1989 while in the course of and arising out of his employment with appellant, Flxible Corporation ("Flxible"), a self-insured employer. Appellant Industrial Commission of Ohio ("commission") allowed the claim for "aggravation of pre- existing low back sprain," and ordered Flxible to pay temporary total disability ("TTD") compensation. Claimant received TTD compensation for intermittent periods until he returned to his former job on August 20, 1989.

On November 2, 1990, claimant filed an application to reactivate his claim (form "C-85-A") and requested TTD benefits from October 16, 1990. On the second part of the form, claimant's attending physician, Stephen A. Yoder, certified claimant as temporarily and totally disabled from October 16, 1990 through November 18, 1990. In a physician's supplemental report (form "C-84") completed with the C-85-A, Dr. Yoder stated that "I suggested pain management program and W.C. [workers' compensation] rehab[ilitation] * * *." In subsequent C-84s, Dr. Yoder certified claimant as temporarily and totally disabled to an estimated date of May 1, 1991. Each C-84 contained statements on the need for a rehabilitation program.

Claimant requested, but was denied, the services of the Ohio Bureau of Workers' Compensation Rehabilitation Division, which, by letter dated December 13, 1990, informed claimant that his file was closed on the basis that he did "not meet the eligibility requirements for Rehabilitation Division services as you are not currently receiving temporary total disability."

On February 7, 1991, claimant's C-85-A application was heard by a District Hearing Officer ("DHO") who granted TTD compensation "from 10-16-90 through 4-30-91 and to continue upon submission of medical evidence." Flxible appealed and the matter was set for a hearing on August 6, 1991 before the Toledo Regional Board of Review ("TRB").

Dr. Yoder continued to file C-84s certifying claimant's TTD through September 16, 1991, and stating his recommendation for "a rehab program, but [I] understand this is being contested thru W.C." Also filed prior to the TRB hearing were Dr. Yoder's office notes containing entries from February 22, 1989 to May 10, 1991, and a report dated June 6, 1991, addressed to Flxible's representative. The report stated, in pertinent part, that:

"I have repeatedly tried to have Carl involved in W.C. rehabilitation program, which for one reason or another has never worked out. I have reached the limits of my ability to find and correct a lesion and see only rehabilitation program anti-inflammatory medications as the forms of treatment. I have little hope of improvement in this patient in the foreseeable future."

The TRB modified the DHO's order of February 7, 1991, finding that "claimant has reached maximum medical improvement based on Dr. Stephen A. Yoder report of June 6, 1991. Temporary total compensation is to be paid to August 5, 1991, and no further."

Claimant appealed the TRB order and the matter was set for hearing before the Staff Hearing Officers ("SHOs") on February 26, 1992. Prior to the hearing, claimant's file with the Rehabilitation Division had been reopened. Also, a report dated August 27, 1991 from Dr. Yoder addressed to claimant's lawyer was filed at the hearing. The report read:

"I feel that the statement on the letter * * * dated 6/6/91 is taken out of context and I certainly will reiterate my stand that Workers' Compensation Rehabilitation program is the primary treatment modality that I have recommended for Carl, repeatedly since 2/89. I believe there is little hope in improvement in Carl Eberhardt's back symptoms unless he is treated through the Workers' Compensation rehabilitation program. Hopefully this will clear up this matter." (Emphasis added.)

The SHO order, however, denied the claimant's appeal and affirmed the finding and order of the TRB. The order stated that "[t]his decision is also based on the office notes of Dr. Yoder. These notes plus his reports, taken in totality, show the claimant has reached maximum medical improvement."

On April 14, 1992, claimant filed a complaint in mandamus in the Court of Appeals for Franklin County alleging an abuse of discretion by the commission in denying compensation. While that action was pending, claimant was informed by letter dated June 4, 1992, from the Rehabilitation Division, that he had "successfully completed rehabilitation services and a thirty (30) day monitor period and continue[s] to work at [his] original job with [his] original employer."

The court of appeals, in a split decision, issued a writ granting TTD compensation subsequent to August 6, 1991, finding as follows:

"Dr. Yoder's position throughout his treatment was that functional change might occur if Mr. Eberhardt could be enrolled in the rehabilitation program of the Ohio Bureau of Workers' Compensation or a similar program. Dr. Yoder did not indicate within reasonable medical probabilities that no improvement would occur if such a program were to be pursued. The very fact that Dr. Yoder consistently urged Mr. Eberhardt to enter the program indicates that Dr. Yoder felt the program would in fact benefit Mr. Eberhardt. As a result, a review of Dr. Yoder's notes and reports leads to only one conclusion, namely that Dr. Yoder at all times believed Mr. Eberhardt's condition was not permanent and functional improvement could occur.

"Under the circumstances, Dr. Yoder's notes, reports and opinions do not constitute some evidence that maximum medical improvement had been achieved. * * * " (Emphasis sic.)

The dissenting judge referred to Dr. Yoder's office note dated June 28, 1989, which stated that claimant "has reached maximum potential that I can get him to and have recommended rehab program." The judge concluded:

"While Dr. Yoder's suggestion regarding a rehabilitation program is plausible, it does not overcome recorded opinions that reasonably lead one to conclude the claimant has reached 'maximum medical improvement.' The record indicates there was clearly evidence before the commission to permit a conclusion that claimant was no longer entitled to temporary total disability compensation.

"In view of the status of the record, it should not be concluded the commission abused its discretion."

The cause is now before this court upon appeals as of right.

Colasurd & Colasurd and Michael D. Colasurd, Columbus, for appellee.

Vorys, Sater, Seymour & Pease, Bradley K. Sinnott and William C. Heer III, Columbus, for appellant Flxible Corp.

Lee I. Fisher, Atty. Gen., and William J. McDonald, Asst. Atty. Gen., for appellant Indus. Com'n.

Stewart Jaffy & Associates Co., L.P.A., Stewart R. Jaffy and Marc J. Jaffy, Columbus, urging affirmance for amici curiae, Ohio AFL-CIO, United Auto Workers and Ohio Academy of Trial Lawyers.

ALICE ROBIE RESNICK, Justice.

This court employs the "some evidence" rule in determining the propriety of mandamus actions which challenge the commission's factual findings. Where the record contains some evidence to support the commission's factual conclusions, its decision will stand. Conversely, where the record contains no evidence to support the commission's order, an abuse of discretion will be found. See State ex rel. Hughes v. Goodyear Tire & Rubber Co. (1986), 26 Ohio St.3d 71, 73, 26 OBR 61, 63, 498 N.E.2d 459, 461; State ex rel. Kokocinski v. Indus. Comm. (1984), 11 Ohio St.3d 186, 188, 11 OBR 499, 500-501, 464 N.E.2d 564, 566.

The final SHO order in the case sub judice found that Dr. Yoder's "[office] notes plus his reports, taken in totality, show the claimant has reached maximum medical improvement." Indeed, the only evidence cited by the commission was generated by Dr. Yoder. The broad issue, therefore, is whether Dr. Yoder's office notes and reports, taken in totality, constitute "some evidence" that claimant has reached the maximum medical improvement.

In light of the parties' arguments, and in light of the opinions rendered in the court of appeals, it is necessary to bifurcate the issue. We must first determine whether Dr. Yoder's August 27, 1991 report is susceptible of differing interpretations regarding the permanence of claimant's medical condition. If it is, the matter ends there, and the commission acted within its discretion. If it is not, we must then determine whether Dr. Yoder's June 6, 1991 report plus his office notes afford the commission some basis upon which to reject the doctor's August 27 report.

R.C. 4123.56(A) provides that TTD payments "shall not be made for the period * * * when the employee has reached the maximum medical improvement." Maximum medical improvement is equatable with the concept of permanence. State ex rel. Youghiogheny & Ohio Coal Co. v. Kohler (1990), 55 Ohio St.3d 109, 110, 564 N.E.2d 76, 78. It "relates solely to the perceived longevity of the condition at issue [and not to] the claimant's ability to perform the tasks involved in his...

To continue reading

Request your trial
180 cases
  • State ex rel. Navistar, Inc. v. Indus. Comm'n of Ohio
    • United States
    • Ohio Supreme Court
    • March 4, 2020
    ...of law.3. Dr. Rutherford's opinion{¶ 24} "[E]quivocal medical opinions are not evidence." State ex rel. Eberhardt v. Flxible Corp. , 70 Ohio St.3d 649, 657, 640 N.E.2d 815 (1994). "[E]quivocation occurs when a doctor repudiates an earlier opinion, renders contradictory or uncertain opinions......
  • State ex rel. Chrysler Corp. v. Industrial Com'n of Ohio
    • United States
    • Ohio Supreme Court
    • February 25, 1998
    ...Comm. (1985), 20 Ohio St.3d 71, 20 OBR 402, 486 N.E.2d 94. After reviewing this precedent, State ex rel. Eberhardt v. Flxible Corp. (1994), 70 Ohio St.3d 649, 657, 640 N.E.2d 815, 821-822, explained what constitutes equivocation by a medical "[E]quivocation occurs when a doctor repudiates a......
  • State ex rel. Smith v. Indus. Comm'n of Ohio
    • United States
    • Ohio Court of Appeals
    • March 13, 2012
    ...the commission's order. {¶ 72} Relator also argues that Ortega's reports are contradictory. In State ex rel. Eberhardt v. Flxible Corp. (1994), 70 Ohio St.3d 649, 657, 640 N.E.2d 815, the Supreme Court of Ohio summarized the distinctionbetween the ambiguous, equivocal, and repudiated report......
  • State v. Indus. Comm'n of Ohio
    • United States
    • Ohio Court of Appeals
    • July 7, 2016
    ...the commission must have, "some reasonable basis for the * * * rejection of a physician's finding." State ex rel. Eberhardt v. Flxible Corp. (1994), 70 Ohio St.3d 649, 655, 640 N.E.2d 815; see also State ex rel. Pavis v. Gen. Motors Corp., 65 Ohio St.3d 30, 33, 1992 Ohio 114, 599 N.E.2d 272......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT