State ex rel. Eaton Corp. v. Industrial Com'n of Ohio

• Decision Date: 03 December 1997
• Docket Number: No. 95-743,95-743
• Citation: 686 N.E.2d 507,80 Ohio St.3d 352
• Parties: The STATE ex rel. EATON CORPORATION, Cross-Appellant and Cross-Appellee, v. INDUSTRIAL COMMISSION OF OHIO, Cross-Appellee; Baker, Cross-Appellee and Cross-Appellant.
• Court: Ohio Supreme Court

Page 352

80 Ohio St.3d 352

686 N.E.2d 507

The STATE ex rel. EATON CORPORATION, Cross-Appellant and Cross-Appellee, v. INDUSTRIAL COMMISSION OF OHIO, Cross-Appellee; Baker, Cross-Appellee and Cross-Appellant.

No. 95-743.

Supreme Court of Ohio.

Submitted Sept. 9, 1997.

Decided Dec. 3, 1997.

Cross-appellant/claimant Frankie L. Baker was injured in September 1977 while employed as a junior inspector for cross-appellant Eaton Corporation, a self-insured employer. Her workers' compensation claim was allowed for "acute cervical muscle strain with right brachial neuritis; chronic muscle strain and sprain of right trapezius and bursitis of right scapula; anterior cervical interbody arthrodesis C5-6." She last worked in August 1982, after which time she began receiving temporary total disability compensation. On September 15, 1986, Eaton moved cross-appellee Industrial Commission of Ohio for permission to terminate claimant's temporary total disability compensation. On October 21, 1986, claimant responded with a motion for permanent total disability compensation.

On October 24, 1986, a district hearing officer issued this order:

" * * * The District Hearing Officer further finds that claimant's temporary disability may now be permanent.

"Pursuant to Industrial Commission Resolution dated July 26, 1982, and State ex rel. Ramirez v. [Indus. Comm. (1982), 69 Ohio St.2d 630, 23 O.O.3d 518, 433 N.E.2d 586], it is hereby ordered that the claimant continues to be temporarily and totally disabled.

"The Hearing Officer, in making this finding of temporary total disability, has taken the following evidence into consideration:

"Dr. Weaver, State Examiner's finding indicating that the claimant is substantially unable to perform former job duties and condition may now be permanent."

That order was administratively affirmed.

After a series of hearings unrelated to this case, claimant's permanent total disability motion was finally heard on August 27, 1992. Among the evidence before the commission were three reports from the claimant's attending physician, Dr. K.A. Zacour. The October 17, 1986 report stated:

"I feel the above patient is permanently disabled, secondary to acute cervical muscle strain with right brachial plexus neuritis. She also has a chronic sprain of her right trapezius, bursitis of her right scapula and degenerative disease of C-5 and C-6. * * * "

One month later, Dr. Zacour completed two questionnaires. In a questionnaire to the Bureau of Workers' Compensation, Dr. Zacour listed the allowed conditions. He stated that claimant could do no work due to "chronic back pain." In a questionnaire prepared by Dr. Zacour for Eaton on the same day, he attributed part of claimant's shoulder and neck symptomatology to a nonallowed degenerative condition.

Claimant was also examined by commission specialist Dr. William G. Kraus, who reported:

"COMPLAINTS : At the present time, claimant complains of an intermittent occipital and right parietal headache, as well as an almost constant, aching pain in the posterior cervical region and with an increased pain on extreme rotation of the cervical spine as well as on flexion and extension of the cervical spine. She also complains of pain in the region of the right scapula. * * * She complains of a restriction of abduction and elevation of her right shoulder with pain on the extremes of motion. * * *

"EXAMINATIONS : [Claimant] * * * sits with her head and neck tilted to the left. There is marked tenderness over the posterior cervical spine. There is a healed, lower anterior lateral scar at the base of the neck. There is a marked restriction of cervical spine motion with zero hyperextension, 30 [degrees] of flexion and zero rotation to the right and 45 [degrees] rotation to the left. Pain was present on the extremes of these motions, and marked paravertebral muscle spasm was palpable in the cervical paraspinal musculature. Examination of her right shoulder revealed marked tenderness over the medial border of the right scapula as well as in the right suprascapular region. There was a restriction of abduction and elevation of the right shoulder with marked pain on attempted motion. * * * There was weakness of grasp function of the right hand. * * * There was no muscle atrophy. Her reflexes were reduced but equal in her upper and lower extremities. There was a reduced sensation in the right upper extremity but not following any definite nerve root distribution. Upper extremities were normal. X-rays of the cervical spine revealed a fusion of the bodies of the C4 and C5 segments. X-rays of the right shoulder were negative.

"DISCUSSION : Claimant sustained an acute strain of her cervical spine and right shoulder, now chronic, and with a herniated cervical intervertebral disc. In addition, she developed a secondary brachial neuritis with a bursitis of the right scapula. She has undergone a cervical laminectomy and spine fusion without significant improvement and is now required to use a cervical traction at home on a regular basis and is required to wear a cervical collar as well as utilize a transcutaneous nerve stimulator for partial relief of her symptom[a]tology.

"OPINION : It is my present opinion that this claimant is now permanently and totally disabled insofar as the performance of any sustained remunerative employment on the basis of the allowed conditions and their complications under Claim No. 626694-22, and, within reasonable medical probability, I do not believe she can be rehabilitated."

The commission granted claimant permanent total disability compensation, finding that she was medically incapable of sustained remunerative employment. That order was based on the reports of Drs. Kraus and Zacour.

In late 1993, Eaton filed a complaint in mandamus in the Court of Appeals for Franklin County, alleging, among other things, that the commission abused its discretion in awarding permanent total disability compensation and, earlier, in awarding temporary total disability compensation subsequent to the declaration of permanency. The appellate court upheld the award of permanent total disability compensation, but vacated the award of temporary total disability compensation. The court ordered the commission to reimburse Eaton from the state Surplus Fund for temporary total disability compensation paid beyond October 24, 1986, and also held that there was to be no offset of funds against future compensation to the claimant.

This cause is now before the court upon cross-appeals as of right.

Willacy & LoPresti, Aubrey B. Willacy and M. Scott Young, Cleveland, for cross-appellant and cross-appellee Eaton Corporation.

Betty D. Montgomery, Attorney General, and Gerald H. Waterman, Assistant Attorney General, for cross-appellee Industrial Commission.

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