State ex rel. Eaton Corp. v. Lancaster

• Decision Date: 30 December 1988
• Docket Number: Nos. 87-622,88-205 and 88-1312,87-1887,s. 87-622
• Citation: 40 Ohio St.3d 404,534 N.E.2d 46
• Parties: The STATE ex rel. EATON CORPORATION, v. LANCASTER et al. (TWO CASES.) The STATE, ex rel. GCC BEVERAGES, INC., Appellee, v. INDUSTRIAL COMMISSION OF OHIO, Appellant, et al. The STATE, ex rel. FIRESTONE TIRE & RUBBER COMPANY, Appellee, v. INDUSTRIAL COMMISSION OF OHIO, Appellant, et al.
• Court: Ohio Supreme Court

Page 404

40 Ohio St.3d 404

534 N.E.2d 46

The STATE ex rel. EATON CORPORATION, v. LANCASTER et al. (TWO CASES.)

The STATE, ex rel. GCC BEVERAGES, INC., Appellee, v. INDUSTRIAL COMMISSION OF OHIO, Appellant, et al.

The STATE, ex rel. FIRESTONE TIRE & RUBBER COMPANY, Appellee, v. INDUSTRIAL COMMISSION OF OHIO, Appellant, et al.

Nos. 87-622, 87-1887, 88-205 and 88-1312.

Supreme Court of Ohio.

Submitted Sept. 28, 1988.

Decided Dec. 30, 1988. ^*

Claimant, Charles D. Swann, sustained three compensable industrial injuries while in the course of and arising from his employment with relator, Eaton Corporation ("Eaton"). As a result, claimant missed significant periods of work, and received temporary total disability compensation over these periods.

On June 13, 1985, the Canton Regional Board of Review denied further temporary total benefits, finding that claimant's condition had become permanent. After a series of cross-appeals and reconsideration requests, that order was eventually vacated by the Industrial Commission ("commission") on December 10, 1986, and temporary total compensation reinstated "during the pendancy [sic ] of claimant's IC-2 Application for Permanent Total Disability and to terminate upon final determination thereof."

Eaton's request for reconsideration was denied on February 26, 1987.

This cause is now before this court as an original action in mandamus and prohibition.

No. 87-1887.

Claimant, Peter N. Protos, sustained two compensable industrial injuries while in the course of and arising from his employment with Eaton. He received temporary total disability compensation for intermittent periods of work missed due to these injuries.

In mid-1986, Eaton filed a motion with the commission alleging that claimant's condition had become permanent and requesting that temporary total compensation be terminated. A district hearing officer found claimant to be temporarily and totally disabled. On appeal, the Canton Regional Board of Review modified the hearing officer's order, specifically finding that "Claimant has reached maximum medical improvement and that his condition is permanent * * *." The regional board additionally ordered temporary total compensation to continue "until such time as the claim is heard on the claimant's Application for Permanent and Total Disability Compensation * * *." This order was affirmed by the commission on August 10, 1987.

This cause is also before this court as an original action in mandamus and prohibition.

No. 88-205.

Claimant, Jake Briggins, sustained a compensable industrial injury while in the course of and arising from his employment with appellee, GCC Beverages ("GCC"). On January 8, 1986, the claim came before a district hearing officer on the issue of continued temporary total disability benefits. In her order of that date, the hearing officer found in part that:

" * * * [C]laimant's condition has become permanent and that Claimant is filing an I. C.2 [sic ] motion. Therefore, the District Hearing Officer orders the payment of compensation from the last date of payment through 9/7/85 and to continue upon the pendancy [sic ] of the IC-2 [application for permanent total disability] * * *."

The order was affirmed by the Cleveland Regional Board of Review. The commission affirmed the board of review.

GCC then filed for a writ of mandamus in the Court of Appeals for Franklin County, alleging that the commission abused its discretion in continuing temporary total benefits despite a determination that claimant's condition had become permanent. The appellate court agreed, holding that " * * * the Industrial Commission may not overrule a motion to terminate temporary total disability compensation after the disability has become permanent simply because there is a motion pending for permanent total disability compensation." The writ was issued ordering the commission to vacate its award continuing temporary total disability compensation.

The cause is now before this court as a matter of right. On March 9, 1988, a joint motion to consolidate this cause with case Nos. 87-622 and 87-1887 was granted.

No. 88-1312.

Claimant, Norris Hill, sustained a compensable industrial injury while in the course of and arising from his employment with appellee, Firestone Tire & Rubber Company ("Firestone"). On October 24, 1985, claimant requested temporary total disability benefits. On February 18, 1986, a district hearing officer granted the motion in part, ordering payment of temporary total compensation "from 7/23/85 to 2/28/86 inclusive and continuing upon receipt of additional medical proof."

The Canton Regional Board of Review modified the hearing officer's order, terminating temporary total compensation as of May 19, 1986, "as claimant's condition had now become permanent." On September 19, 1986, staff hearing officers vacated the board's order and reinstated the district hearing officer's award of temporary total compensation.

Firestone then filed for a writ of mandamus in the Court of Appeals for Franklin County, alleging that the commission abused its discretion in continuing temporary total compensation despite a finding of permanency. The writ was issued ordering the commission to vacate its award of temporary total disability compensation subsequent to July 23, 1985.

The cause is now before this court as a matter of right. A joint motion to consolidate this cause with case Nos. 87-622, 87-1887 and 88-205 was granted on October 5, 1988.

Willacy & LoPresti and Aubrey B. Willacy, Cleveland, for relator in case Nos. 87-622 and 87-1887.

Arter & Hadden, Louis J. Licata, Cleveland, and Douglas M. Bricker, Columbus, for appellee in case No. 88-205.

Buckingham, Doolittle & Burroughs, John N. Childs and Timothy C. Campbell, Akron, for appellee in case No. 88-1312.

Anthony J. Celebrezze, Jr., Atty. General, Helen M. Ninos and Merl H. Wayman, for respondents, members of Indus. Com'n, and appellant, Indus. Com'n, in case Nos. 87-622 and 88-205, respectively; Jeffery W. Clark, Merl H. Wayman, Columbus, and James A. Barnes, Cleveland, for respondents, members of Indus. Com'n in case No. 87-1887; Dennis L. Hufstader, Columbus, for appellant, Indus. Com'n, in case No. 88-1312.

Zwick Law Offices Co., L.P.A., and Victoria Z. Klapp, Canton, for claimant in case No. 87-622.

Webster M. Lonas, Jr., Canton, for claimant in case No. 87-1887.

Stewart Jaffy & Associates Co., L.P.A., and Stewart R. Jaffy, Columbus, urging denial of the writs in case No. 87-622, for amicus curiae Ohio AFL-CIO.

Vorys, Sater, Seymour & Pease, Russell P. Herrold, Jr., and Robert A. Minor, Columbus, urging affirmance in case No. 88-205, for amicus curiae Ohio Mfrs. Ass'n.

PER CURIAM.

In each of the cases before us, continued payment of temporary total disability compensation was ordered despite a finding that the claimant's condition had become permanent. The commission concedes that in each case, compensation was continued pursuant to a long-standing commission policy, as contained in a memorandum of October 21, 1987. Specifically, the policy provided that hearing officers, in their discretion, could continue temporary total benefits, despite evidence of permanency, where the claimant had applied for permanent total disability compensation and appeared to meet the permanent total disability criteria.

We are presently asked to determine the validity of this policy. Upon review, we find it to be both substantively and procedurally invalid.

R.C. 4123.56, in addressing temporary total disability, provided in pertinent part:

" * * * [P]ayment shall not be made for such period when any employee has returned to work or when an employee's treating physician has made a written statement that the employee is capable of returning to his former position of employment.

"After two hundred weeks of temporary total disability benefits, the claimant shall be scheduled for an examination by the industrial commission medical department for an evaluation to determine whether or not the temporary disability has become permanent."

In State, ex rel. Ramirez, v. Indus. Comm. (1982), 69 Ohio St.2d 630, 632, 23 O.O.3d 518, 519, 433 N.E.2d 586, 588, we interpreted R.C. 4123.56 as follows:

" 'An employee is entitled to be paid temporary total disability when injured and unable to work until one of the following three things occur[s]: (1) he has returned to work, (2) his treating physician has made a written statement that he is capable of returning to his former position of employment, or (3) the temporary disability has become permanent.' " (Emphasis added.)

Ramirez thus contemplates that compensation paid pursuant to R.C. 4123.56 would, if the other statutory requirements were met, remain payable until the temporary disability became permanent without the statute specifically so stating.

In State, ex rel. Bryant, v. Pinkerton's, Inc. (1986), 24 Ohio St.3d 79, 24 OBR 226, 493 N.E.2d 544, and Vulcan Materials Co. v. Indus. Comm. (1986), 25 Ohio St.3d 31, 25 OBR 26, 494 N.E.2d 1125, we held that the permanency question could be entertained at any point during a claimant's receipt of temporary total compensation. State, ex rel. Dresser Industries, v. Indus. Comm. (Aug. 21, 1986), Franklin App. No. 85AP-212, unreported , and State, ex rel. Lynn, v. Indus. Comm. (July 15, 1986), Franklin App. No. 85AP-351, unreported , specifically stated that a finding of permanency precluded the payment of temporary total compensation. As noted in Lynn, " * * * [t]emporary total disability means a disability which is not permanent. * * * [T]he purpose of temporary total disability is not to compensate for those injuries which are diagnosed as permanent. * * *" Id. at 4. We agree.

The commission policy attempts to enlarge the class of claimants currently eligible for temporary total compensation. In State, ex rel. Ashcraft, v. Indus. Comm. (1984), 15 Ohio St.3d 126, 15 OBR 276, 472 N.E.2d 1077, we struck down a similar attempt...