State, ex rel. Kaska, v. Indus. Comm.

• Decision Date: 03 June 1992
• Docket Number: No. 90-2383,90-2383
• Citation: 63 Ohio St.3d 743,591 N.E.2d 235
• Parties: The STATE, ex rel. KASKA et al., Appellees, v. INDUSTRIAL COMMISSION OF OHIO; ITT Continental Baking Company, Appellant.
• Court: Ohio Supreme Court

Page 743

63 Ohio St.3d 743

591 N.E.2d 235

The STATE, ex rel. KASKA et al., Appellees, v. INDUSTRIAL COMMISSION OF OHIO; ITT Continental Baking Company, Appellant.

No. 90-2383.

Supreme Court of Ohio.

Submitted Feb. 11, 1992.

Decided June 3, 1992.

Appellee-claimant, Francis R. Kaska, sustained physical and psychological injuries in the course of and arising from his employment with appellant, ITT Continental Baking Company, on January 29, 1979. Claimant received awards for permanent partial disability under former R.C. 4123.57, for the period January 30, 1979 through October 19, 1981.

Subsequently, claimant applied for temporary total disability compensation from September 28, 1987 through the "present," based on the attending physician's report of Dr. Gerard Seltzer. Dr. Seltzer listed claimant's complaints as "pain & stiffness in neck, low back & left side," and certified temporary total impairment from September 28, 1987 through January 25, 1988.

On March 9, 1988, a commission district hearing officer denied claimant's application, stating:

" * * * [A]s claimant's injuries of 1-29-79 have become permanent as per Dr. [Donald J.] Weinstein's 2-6-86 exam, Dr. [V.A.] Nagelis['] 2-26-88 exam, claimant's prior 71% Permanent Partial Disability award * * *."

The denial of compensation was administratively affirmed.

Claimant thereafter filed a complaint in mandamus in the Court of Appeals for Franklin County, alleging that the commission abused its discretion by denying temporary total disability compensation. The court of appeals found that neither Drs. Nagelis nor Weinstein provided "some evidence" supporting the denial of temporary total disability compensation. The court also questioned whether temporary total disability compensation had possibly been denied based on claimant's prior permanent partial disability awards. The court issued a limited writ that vacated the commission's order and returned the cause to the commission for further consideration.

This cause is now before this court upon an appeal as of right.

Dennis O. Norman, Cleveland, for appellee.

Vorys, Sater, Seymour & Pease, Robert A. Minor and Elizabeth T. Smith, Columbus, for appellant.

PER CURIAM.

Temporary total disability compensation was denied for the period September 28, 1987 through February 29, 1988. Addressing the medical evidence first, we note that Dr. V.A. Nagelis did not examine claimant until February 26, 1988. His report, therefore, is not "some evidence" supporting denial of temporary total compensation prior to that time. While the report could support a denial after February 26, 1988, the commission did not state the date on which it considered the claimant's condition to have become permanent. From the wording of the commission's order, we cannot ascertain whether the condition was found permanent as of (1) the latest permanent partial disability award of January 16, 1987; (2) Dr. Donald J. Weinstein's February 6, 1986 exam; (3) Dr. Nagelis' February 26, 1988 exam, or (4) the March 9, 1988 district hearing officer order. We refuse to speculate as to the commission's intention and, accordingly, find that Dr. Nagelis' report cannot be considered "some evidence" supporting the commission's decision.

Dr. Weinstein stated that claimant's psychiatric condition was permanent. Claimant's alleged temporary total disability, however, was premised on physical conditions. Evidence that the claimant's psychiatric condition is permanent is irrelevant in determining whether claimant's temporary total disability resulted from his allowed physical conditions.

Turning to claimant's prior permanent partial disability awards, we observe that former R.C. 4123.56 and 4123.57 do not indicate whether a permanent partial disability award precludes later receipt of temporary total disability compensation. The only contemporaneous reference to the two forms of compensation occurs in former R.C. 4123.57(D), which states:

"Compensation for [permanent] partial disability under divisions (A), (B), and (C) of this section shall be in addition to the compensation paid the employee for the periods of temporary total disability resulting from the injury or occupational disease * * *." (137 Ohio Laws, Part II, 3950.)

Former R.C. 4123.57(D) contains no qualification as to the chronology of the two awards. Coupled with the absence of language to the contrary in either former R.C. 4123.56 or 4123.57, these sections should not be considered to bar an award of temporary total disability compensation following receipt of permanent partial disability compensation.

Appellant contends that statutory analysis notwithstanding, the "permanency" element of a permanent partial disability award is sufficient to preclude receipt of temporary total disability compensation. This argument, however, necessarily assumes that "permanent," as used in former R.C. 4123.57 has the same meaning as that term is used in Ramirez, supra. We find otherwise.

For our purposes herein, "permanent" is not statutorily defined. (The definition of "maximum medical improvement" implemented by Am. S.B. No. 307 and R.C. 4123.56 post-dates claimant's injury.) We defined "permanency," however, as used in Ramirez, as "a condition that will, ' * * * with reasonable probability, continue for an indefinite period of time without any present indication of recovery therefrom.' " Vulcan Materials Co. v. Indus. Comm. (1986), 25 Ohio St.3d 31, 33, 25 OBR 26, 27, 494 N.E.2d 1125, 1127.

Previously, the Franklin County Court of Appeals held that "permanency" is subject to differing interpretations. Perhaps cognizant of the dangers of using the term "permanent" too loosely, the court wrote that:

" * * * [A] distinction exists between the permanency involved in a permanent partial disability...