State ex rel. Hiles v. Netcare Corp.

SUPREME COURT CASES

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State: Ohio

Court: Supreme Court

Docket No: 1994-1795

Case Date: 08/21/1996

Plaintiff: State ex rel. Hiles

Defendant: Netcare Corp.

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The State ex rel. Hiles, Appellee, v. Netcare Corporation; Industrial

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Commission of Ohio, Appellant.

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[Cite as State ex rel. Hiles v. Netcare Corp. (1996),_____ Ohio St.

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3d._____.]

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Workers' compensation -- Industrial Commission abuses its discretion in denying application for partial disability

compensation pursuant to former R.C. 4123.57(A), when. (No. 94-1795 -- Submitted May 21, 1996 -- Decided August 21, 1996.)

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Appeal from the Court of Appeals for Franklin County, No.

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93APD08-1189.

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Appellee-claimant, Robert T. Hiles, was injured in 1985 while in the

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course of and arising from his employment with Netcare Corporation.

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Appellant, Industrial Commission of Ohio, subsequently allowed his

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workers' compensation claim for both physical and psychiatric conditions.

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In January 1990, claimant applied for partial disability compensation

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pursuant to former R.C. 4123.57. Among the evidence before the

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commission was a June 20, 1987 report from Dr. Watson H. Walker, who

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assessed a twenty percent permanent partial physical impairment and stated

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that claimant would be able to return to his former job. Dr. W. Jerry

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McCloud concurred with this conclusion on September 12, 1988. Dr. Jerry

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D. Culberson on April 22, 1991 assessed a thirty-nine percent physical

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impairment, but did not comment on claimant's ability to work.

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A report from Dr. Lee Howard dated September 12, 1988 was also

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before the commission. Commenting on claimant's psychiatric condition,

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he found a twenty to thirty percent temporary partial impairment that was

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not "work prohibitive."

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The Administrator of the Bureau of Workers' Compensation, on May

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21, 1991, tentatively found a thirty-nine percent permanent partial disability

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based on a "medical examination * * * conducted * * * on 4/17/91 [sic

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4/16/91]." No reconsideration was sought.

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Given the choice of receiving his award as a lump sum permanent

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partial disability ("PPD") award under former R.C. 4123.57(B) or as a bi-

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weekly impaired earning capacity ("IEC") award pursuant to former

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4123.57(A), claimant chose the latter.

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Following a hearing on October 31, 1991, a district hearing officer

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denied impaired earning capacity compensation, writing:

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"* * * [C]laimant's election to receive benefits under paragraph (A) is

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denied in full. Although medical evidence in file adequately illustrated that

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claimant sustains [sic] a physical impairment secondary to allowed

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conditions, (i.e., 39% per Dr. McCloud's 11/22/88 opinion [sic]), such

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evidence fails to show that [sic] any impairment of earning capacity, either

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physically or psychiatrically. In that same Dr. McCloud report he opines

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claimant that [sic] physically capable of resuming previous employment.

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"Further, none of the psychiatric evaluations in file suggest[s] that

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claimant is mentally prevented from resuming his previous duties as a

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licensed practical nurse."

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The regional board of review affirmed the district hearing officer's

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order. Staff hearing officers affirmed the board after a hearing on August

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26, 1992, stating that:

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"* * * the claimant's appeal be denied, and the finding and order of

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the Regional Board be affirmed for the reason it is supported by proof of

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record and is not contrary to law.

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"In addition to the reasons and evidence cited by the District Hearing

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Officer, the Staff Hearing Officers further provide the following findings: 3

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"It is found that the claimant is 42 years old, he went to school

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through the tenth grade but he completed a G.E.D., he has obtained training

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as a licensed practical nurse, and his employment history involves work as a

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licensed practical nurse at a state psychiatric hospital.

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"It is further found that, based upon a review of the detailed reports

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previously prepared by Doctors Walker, McCloud and Howard, there are no

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physical or psychological restrictions or limitations which would cause

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actual impairment of earning capacity. In light of the detailed reports and

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lack of restrictions found by Doctors Walker and McCloud, the report and

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opinion of Dr. Deem, although considered at this hearing, was not found

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fully persuasive. Accordingly, based upon a consideration of the non-

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allowed medical disability factors as noted above, as well as the medical

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[illegible] contained within the reports of Doctors Culberson, Howard,

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McCloud and Walker, it is found that there is no proof of an actual

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impairment of earning capacity due to the injuries sustained in 1985."

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Claimant filed a complaint in mandamus in the Court of Appeals for

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Franklin County, alleging that the commission abused its discretion in

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denying his choice to receive benefits under R.C. 4123.57(A). The court of

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appeals agreed and issued the writ.

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

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Michael J. Muldoon, for appellee.

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Betty D. Montgomery, Attorney General, and William J. McDonald,

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Assistant Attorney General, for appellant.

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Per Curiam. Former R.C. 4123.57 provided:

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"Partial disability compensation shall be paid as follows, provided

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that an employee may elect as between divisions (A) and (B) of this section

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as to the manner of receiving the compensation set forth in this section:

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"(A) * * * [T]he employee shall receive per week sixty-six and two-

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thirds percent of the impairment of his earning capacity which results from

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the injury * * *.

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"(B) * * * [T]he percentage of the employee's permanent disability *

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* * causing permanent impairment and evidenced by medical or clinical

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findings reasonably demonstrable * * *." (138 Ohio Laws, Part I, 1733.)

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Contrary to claimant's representation, he does not possess an

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automatic right to former R.C. 4123.57(A) compensation. State ex rel. 5

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Johnson v. Indus. Comm. (1988), 40 Ohio St.3d. 384, 533 N.E. 2d 775.

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Claimant must prove actual IEC and a causal relationship to the allowed

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conditions. State ex rel. Apgar v. Indus. Comm. (1989), 42 Ohio St.3d. 5,

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535 N.E. 2d 1364. An injury that has healed cannot impair a claimant's

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capacity to earn.

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The commission found neither, based on an absence of medical

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restrictions or limitations. If supported by "some evidence," this finding

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would be a valid basis for denial of compensation.

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The commission asserts that the appellate court improperly reversed

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who has the burden of proof in this case:

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"The Court [of Appeals] totally ignored the relator's [claimant's]

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evidence, and instead focused solely on whether the evidence relied upon by

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the Industrial Commission proved that relator did not have an impaired

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earning capacity. This is prejudicially erroneous, as it places the burden on

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the Industrial Commission to prove that a claimant does not have an

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impairment of earning capacity."

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The commission confuses burden of proof with evidentiary review.

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The focus is naturally on the commission's evidence, since it is the 6

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commission's burden to support its orders with "some evidence." State ex

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rel. Burley v. Coil Packing, Inc. (1987), 31 Ohio St.3d 18, 31 OBR 70, 508

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N.E. 2d 936. This is not the same as forcing the commission to disprove

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claimant's allegation of IEC.

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In this case, the commission's order is not supported by the evidence.

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The appellate court, through its referee, suggested that the McCloud,

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Walker and Howard reports -- which pre-dated the permanent partial

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disability application by sixteen, thirty-one, and sixteen months respectively

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-- were stale and not, therefore, "some evidence" in support. This is a valid

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conclusion under these facts.

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A finding of evidentiary staleness should always be approached

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cautiously. More relevant than the time at which a report was rendered are

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the content of the report and the question at issue. For example, where the

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issue is maximum medical improvement, a report that finds a permanent

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impairment is rarely rendered invalid by the passage of time. Conversely,

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the changeable nature of a claimant's ability to work is often affected by

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time.

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In this case, the commission's own actions substantiate the appellate

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court's reasoning. When forced to select the medical evidence that most

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accurately reflected the degree of claimant's permanent partial disability in

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1991, the commission on May 21, 1991 rejected the McCloud, Walker and

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Howard reports and relied on Dr. Culberson's April 1991 narrative. The

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court of appeals did not, therefore, err in finding that the Walker, McCloud

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and Howard reports were not "some evidence" supporting the commission's

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denial of IEC.

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The removal of these reports leaves Dr. Culberson's report as the sole

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evidence on which the commission's findings rest. Like the other reports,

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the Culberson report does not support the challenged order. Dr. Culberson

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does not corroborate the commission's conclusion that claimant had no

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medical limitations on his ability to earn. Dr. Culberson never addressed

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this question, so he provides no definitive substantiation or refutation of that

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finding. Moreover, his finding of a thirty-nine percent impairment seems

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inconsistent with the commission's determination that nothing was

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physically wrong with claimant.

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For these reasons, the judgment of the court of appeals is affirmed. 8

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Judgment affirmed.

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MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER and COOK,

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JJ., concur.

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STRATTON, J., dissents.

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