86 N.E.3d 294 (Ohio 2017), 2015-1074, State ex rel. Ohio Presbyterian Retirement Services, Inc. v. Industrial Commission

Docket Nº2015-1074
Citation86 N.E.3d 294, 151 Ohio St.3d 92, 2017-Ohio-7577
Opinion JudgeKennedy, J.
Party NameThe STATE EX REL. OHIO PRESBYTERIAN RETIREMENT SERVICES, INC., Appellant, v. INDUSTRIAL COMMISSION OF OHIO, et al., Appellees.
AttorneyVorys, Sater, Seymour & Pease, L.L.P., and Rosemary D. Welsh, Cincinnati, for appellant. Michael DeWine, Attorney General, and Andrew Alatis, Assistant Attorney General, for appellee Industrial Commission. Robert A. Muehleisen, for appellee Sherry L. Redwine. Philip J. Fulton Law Office, Philip J...
Judge PanelO'Connor, C.J., and O'Donnell, French, Fischer, and Dewine, JJ., concur. O'Neill, J. dissents.
Case DateSeptember 14, 2017
CourtSupreme Court of Ohio

Page 294

86 N.E.3d 294 (Ohio 2017)

151 Ohio St.3d 92, 2017-Ohio-7577

The STATE EX REL. OHIO PRESBYTERIAN RETIREMENT SERVICES, INC., Appellant,

v.

INDUSTRIAL COMMISSION OF OHIO, et al., Appellees.

No. 2015-1074

Supreme Court of Ohio

September 14, 2017

Submitted June 7, 2017

Page 295

APPEAL from the Court of Appeals for Franklin County, No. 14AP-624, 2015-Ohio-2122.

ON MOTION FOR RECONSIDERATION.

Vorys, Sater, Seymour & Pease, L.L.P., and Rosemary D. Welsh, Cincinnati, for appellant.

Michael DeWine, Attorney General, and Andrew Alatis, Assistant Attorney General, for appellee Industrial Commission.

Robert A. Muehleisen, for appellee Sherry L. Redwine.

Philip J. Fulton Law Office, Philip J. Fulton, and Chelsea Fulton Rubin, Columbus, urging affirmance for amici curiae Ohio Association of Claimants' Counsel and Ohio Association for Justice.

Vorys, Sater, Seymour & Pease, L.L.P., and Robert A. Minor, Columbus, urging reversal for amicus curiae Ohio Self-Insurers Association.

Garvin & Hickey, L.L.C., Preston J. Garvin, and Michael J. Hickey, Columbus, urging reversal for amicus curiae Ohio Chamber of Commerce.

OPINION

Page 296

Kennedy, J.

[151 Ohio St.3d 93] [¶ 1] In State ex rel. Ohio Presbyterian Retirement Servs., Inc. v. Indus. Comm., 150 Ohio St.3d 102, 2016-Ohio-8024, 79 N.E.3d 522 (" Ohio Presbyterian I " ), we held that the Industrial Commission does not have authority to award an injured employee permanent-partial-disability compensation under R.C. 4123.57(A) when the employee has previously been determined to be entitled to permanent-total-disability compensation under R.C. 4123.58 for the same claim.

[¶ 2] This court has the authority to grant motions for reconsideration filed under S.Ct.Prac.R. 18.02 in order to " correct decisions which, upon reflection, are deemed to have been made in error." State ex rel. Huebner v. W. Jefferson Village Council, 75 Ohio St.3d 381, 383, 662 N.E.2d 339 (1995). Appellee Sherry L. Redwine moved this court to reconsider our holding in Ohio Presbyterian I, arguing that the commission has authority to award concurrent permanent-total-disability compensation under R.C. 4123.58 and permanent-partial-disability compensation under R.C. 4123.57(A) for different conditions within the same claim.

[¶ 3] We granted Redwine's motion, reopened the case for further consideration, and sua sponte ordered oral argument with no additional briefing. 147 Ohio St.3d 1480, 2016-Ohio-8492, 66 N.E.3d 766. Having heard oral argument and reconsidered the parties' arguments, we conclude that our holding in Ohio Presbyterian I was not made in error, and we adhere to it. When an injured employee is receiving permanent-total-disability compensation pursuant to R.C. 4123.58, the commission is without statutory authority to grant in the same claim permanent-partial-disability compensation under R.C. 4123.57(A). Therefore, we reverse the judgment of the court of appeals and issue a writ of mandamus ordering the commission to vacate its award to Redwine of permanent-partial-disability compensation under R.C. 4123.57(A) and to issue an order denying the award.

I. Case Background

[¶ 4] On August 13, 2003, Redwine was injured at work. She filed a workers' compensation claim that was allowed for the following conditions: lumbosacral strain, radiculopathy right lower extremity, aggravation of pre-existing degenerative disc disease, depression, and ruptured disc at L4-5 with free disc fragment.

[151 Ohio St.3d 94] [¶ 5] Redwine applied for permanent-total-disability compensation. The commission concluded that Redwine was unable to perform any sustained remunerative employment due solely to the medical impairment caused by the allowed psychological condition in her claim and awarded her benefits beginning July 12, 2010, to continue until her death.

[¶ 6] In August 2013, Redwine applied for permanent-partial-disability compensation. She conceded that she was not entitled to permanent-partial-disability benefits for her psychological condition (for which she had been granted permanent-total-disability compensation), but she maintained that she was entitled to this award based on the physical conditions allowed in her claim.

[¶ 7] A district hearing officer denied her application based on a lack of statutory authority for concurrent awards under R.C. 4123.57(A) and 4123.58. In addition, the hearing officer noted that the physical and psychological conditions were the result of the same workplace injury and under State ex rel. Murray v. Indus. Comm., 63 Ohio St.3d 473, 588 N.E.2d 855 (1992), a claimant is precluded from receiving simultaneous benefits for permanent partial disability

Page 297

and permanent total disability for the same injury.

[¶ 8] On reconsideration, a staff hearing officer concluded that a claimant is not barred from concurrent compensation for permanent partial disability if it is based on conditions that were not the basis for the prior finding of permanent total disability in the same claim. The hearing officer relied in part on the commission's analysis of the same issue in claim No. 02-354357 involving a different injured employee. In that case, the commission determined that the analysis of concurrent awards focuses on an injured employee's allowed medical conditions, not the injury or claim, citing State ex rel. Missik v. Youngstown, 65 Ohio St.3d 189, 602 N.E.2d 633 (1992), and State ex rel. Hoskins v. Indus. Comm., 87 Ohio St.3d 560, 722 N.E.2d 66 (2000).

[¶ 9] Redwine's employer, Ohio Presbyterian Retirement Services, Inc. (" OPRS" ), filed a complaint for a writ of mandamus, alleging that there was no statutory authority for the commission's order and therefore it was not supported by some evidence. A magistrate determined that the writ should be denied. The magistrate relied on State ex rel. Mosley v. Indus. Comm., 10th Dist. Franklin No. 13AP-127, 2014-Ohio-1710, 2014 WL 1612681, and concluded that because the psychological condition formed the basis for the permanent-total-disability award, Redwine's physical conditions could be the basis of permanent-partial-disability compensation. The court of appeals adopted the magistrate's decision and denied the writ.

[¶ 10] OPRS filed a direct appeal in this court. We reversed the judgment of the court of appeals and granted the request for a writ of mandamus in Ohio Presbyterian I. Having granted reconsideration of that decision, we now turn to [151 Ohio St.3d 95] the propositions of law presented in OPRS's direct appeal: (1) " R.C. 4123.95's requirement of liberal construction in favor of employees does not allow a court to read into a statute something that cannot reasonably be implied from the language of the statute" and (2) " A claimant who is receiving permanent and total disability compensation under R.C. 4123.58 is ineligible to receive permanent partial disability compensation under R.C. 4123.57(A) in the same claim."

[¶ 11] In response, Redwine, asserts that " [t]he Industrial Commission does not abuse its discretion when finding that an injured worker is entitled to receive compensation for her percentage of permanent partial impairment under R.C. 4123.57(A) for...

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