State ex rel. Hoover Co. v. Indus. Comm.

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State: Ohio

Court: Supreme Court

Docket No: 1994-0031

Case Date: 06/28/1995

Plaintiff: State ex rel. Hoover Co.

Defendant: Indus. Comm.

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The State ex rel. Hoover Company, Appellee, v. Industrial
Commission of Ohio; Farwick, Appellant.
[Cite as State ex rel. Hoover Co. v. Indus. Comm. (1995),
Ohio St.3d .]
Workers' compensation -- Determination of permanent total

disability -- Res judicata has limited application to

workers' compensation matters -- Industrial Commission's

decision supported by "some evidence," when.

(No. 94-31 -- Submitted April 24, 1995 -- Decided June 28,
1995.

Appeal from the Court of Appeals for Franklin County, No.
92AP-1113.

Appellant-claimant, Irene M. Farwick, sustained five
injuries in the course of and arising from her employment with
appellee, Hoover Company. In August 1988, Hoover moved
respondent Industrial Commission of Ohio to terminate
claimant's temporary total disability compensation. Two months
later, claimant moved for permanent total disability
compensation.

On December 20, 1988, a district hearing officer ruled on
Hoover's motion to terminate. Among other evidence presented
was the October 6, 1988 report of Dr. H.W. Kang, claimant's
attending physician, who, based on his September 13, 1988
examination, opined that the claimant was permanently and
totally disabled. The district hearing officer held:

"* * * that the claimant is capable of substantially
resuming the responsibilities and tasks making up the
claimant's former position of employment.

"Based on the 'Ramirez' [State ex rel. Ramirez v. Indus.
Comm. (1982), 69 Ohio St.2d 630, 23 O.O. 3d 518, 433 N.E.2d
586] guidelines and Industrial Commission Resolution dated July
26, 1982, it is hereby ordered that the claimant is no longer
temporarily and totally disabled effective December 20, 1988.

"The District Hearing Officer, in making this finding on
temporary total disability, has taken the following evidence
into consideration: Dr. Kang, claimant's physician's finding
indicating claimant is now permanently and totally disabled;
Dr. Erickson, employer's physician's finding per report of June

21, 1988; Dr. Weaver, State examiner's finding indicating
claimant could return to [her] former position of employment.

"Upon review and analysis of these reports and taking the
allowed condition into consideration, this finding was made."

Claimant timely appealed. She obtained a second report
from Dr. Kang, dated January 18, 1989, which again stated that,
based on his September 13, 1988 exam, claimant was forever
removed from gainful employment. The termination of claimant's
temporary total disability compensation was administratively
affirmed. No judicial appeal followed.

Claimant's permanent total disability application was
heard on January 28, 1992. Among the medical evidence before
the commission were the reports of Drs. Kang, Norman W.
Lefkovitz, and Paul Steurer. Dr. Steurer concluded that:

"Based on my exam and based on recent medical probability
and certainty and using the AMA guidelines of impairment, due
to the allowed orthopedic conditions, Mrs. Farwick is indeed
prevented from returning to her former position of employment
and her condition is now permanent. Due to the allowed
orthopedic conditions Mrs. Farwick is indeed totally
permanently prevented from all sustained remunerative
employment and consequently she should be considered 100%
disabled. She is not a rehabilitation candidate."

The commission awarded permanent total disability
compensation, writing:

"It is now the finding of the Commission that claimant is
permanently and totally disabled; that compensation for such
disability be awarded from 1-18-89 * * *; that 100% of the cost
of this award is to be charged to claim 902006-22 * * *.

"The reports of Drs. Kang, Smith, Pentz, Erickson,
Lefkovitz, Steurer and the Vocational Specialist report of John
Kilcher, were reviewed and evaluated; however, this order is
based particularly upon the reports of Drs. Kang, Lefkovitz,
Steurer and the Vocational Specialist report of John Kilcher
[and] a consideration of the claimant's age, education, work
history * * *.

"It is the further finding of the Commission that the
order of the District hearing officer, dated 12-20-88, which
terminated temporary total disability on the grounds of
permanency, was based upon the report of Dr. Kang, who found
claimant was permanently and totally disabled, the report of
Dr. Erickson, who found 10%, and the report of Dr. Weaver, who
found that claimant could return to work; that said order
therefore is not conclusive with respect to the issue of
claimant's ability to return to her former duties of
employment. It is the further finding of the Commission that
claimant's cessation of work resulted from her physical
incapacity to return to work, as evidenced by the report of Dr.
Kang, and therefore does not constitute voluntary retirement. *
* *

"It is the further finding of the Commission that claimant
is now 62 years of age, has a high-school education and no
special training or vocational skills, other than those
acquired during her work history; that claimant, by the reports
of two specialists, is not a candidate for rehabilitation; that
by the report of John Kilcher, the claimant would not be able
to perform any substantial, gainful employment based upon her

age, lack of transferable skills, and her restricted functional
capacity. The Commission concludes, upon the basis of the
medical reports of impairment and the disability factors noted
above, that claimant is unable to perform any substantial,
gainful employment, and that she is therefore permanently and
totally disabled."

Hoover filed a complaint in mandamus in the Court of
Appeals for Franklin County, alleging that the commission's
order was unsupported by "some evidence" and was barred by res
judicata. The appellate court agreed that evidentiary
deficiencies did exist, and vacated the order and returned the
cause with instructions that the commission give the matter
further consideration with an amended order to follow.

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

Black, McCuskey, Souers & Arbaugh and Gust Callas, for
appellee.

Zwick Law Offices Co., L.P.A., Victoria Zwick Klapp and
Barbara A. Venesy, for appellant.

Per Curiam. Four issues are presented: (1) Did res
judicata bar a finding of permanent total disability? (2) Did
"some evidence" support the commission's decision? (3) Did
claimant voluntarily retire? and (4) Did the commission err in
apportioning the award exclusively to one claim? For the
reasons to follow, the appellate judgment is affirmed, the
commission's order is vacated, and the cause is returned to it
for further consideration and amended order.

On December 20, 1988, a district hearing officer
terminated temporary total disability compensation after
concluding that claimant could return to her former position of
employment. That finding was administratively affirmed and
never judicially challenged. Lacking judicial challenge,
Hoover asserts that the December 20, 1988 finding became the
commission's final pronouncement on claimant's extent of
disability, thereby precluding permanent total disability
compensation. This argument is unpersuasive.

Res judicata has limited application to workers'
compensation matters, especially those involved in extent of
disability:

"'It is almost too obvious for comment that res judicata
does not apply if the issue is claimant's physical condition or
degree of disability at two entirely different times * * *. A
moment's reflection would reveal that otherwise there would be
no such thing as reopening for change in condition. The same
would be true of any situation in which the facts are altered
by a change in the time frame * * *.'" State ex rel. B.O.C.
Group, GMC v. Indus. Comm. (1991), 58 Ohio St.3d 199, 201, 569
N.E.2d 496, 498, quoting 3 Larson, Workers' Compensation Law
(1989), Section 79.72(f).

Turning to the evidentiary challenge posed, we disagree
with Hoover's assertion that no medical evidence supports
permanent total disability. Dr. Steurer's report declared that
claimant's allowed conditions prevented sustained remunerative
employment and, in so doing, eliminates inquiry into the
adequacy of the commission's nonmedical analysis under State ex

rel. Stephenson v. Indus. Comm. (1987), 31 Ohio St.3d 167, 31
OBR 369, 509 N.E.2d 946. Medical evidence of permanent total
impairment eliminates the need for nonmedical consideration.
State ex rel. Galion Mfg. Div., Dresser Industries, Inc. v.
Haygood (1991), 60 Ohio St.3d 38, 573 N.E.2d 60.

Dr. Steurer's report is immaterial, however, if claimant
is found to have retired from the labor market for reasons
unrelated to her injuries, prior to filing her permanent total
disability application. State ex rel. Baker Material Handling
Corp. v. Indus. Comm. (1994), 69 Ohio St.3d 202, 631 N.E.2d

138. Retirement under those circumstances forecloses permanent
total disability. The commission found that claimant's
retirement was injury-precipitated based on Dr. Kang's report.
Hoover challenges that finding, arguing that State ex rel.
Zamora v. Indus. Comm. (1989), 45 Ohio St.3d 17, 543 N.E.2d 87,
prohibits commission reliance on Kang. We agree.

In Zamora, the claimant sought to have a psychiatric
condition added to his claim. Dr. Kogut found that claimant
did have a psychiatric condition, but the condition was
unrelated to his industrial injury. The commission allowed the
condition nonetheless.

Claimant later sought permanent total disability
compensation. The commission denied permanent total disability
based partially on Dr. Kogut's earlier report. We found an
abuse of discretion, stating that "it would be inconsistent to
permit the commission to reject the Kogut report at one level,
for whatever reason, and rely on it at another." Id. at 19,
543 N.E.2d at 89.

Hoover contends that the commission rejected Kang's report
when it terminated temporary total disability in 1988.
Claimant responds that Zamora is inapplicable because (1)
Kang's reports were prepared for permanent total disability,
not temporary total disability purposes, and (2) Kang has
submitted a later report. Both arguments lack merit.

Claimant initially asserts that Kang's reports were made
for permanent total disability purposes and could not,
therefore, have been rejected in a temporary total disability
hearing. His report, however, clearly ventures an opinion that
is germane to the current inquiry. Kang stated that claimant
could perform no sustained remunerative employment. Sustained
remunerative employment encompasses the claimant's former
position of employment. The commission, therefore, necessarily
rejected Kang's opinion when it held that claimant could resume
her former duties.

Claimant alternatily argues that if Kang's 1988 report was
rejected, his January 1989 report -- which reiterated Kang's
earlier conclusion -- post-dated the district hearing and thus
could not have been considered and rejected. The 1989 report,
however, did not post-date the regional board and staff
hearings that followed, where the district hearing officer's
order was affirmed. Additionally, that report was no more than
a pure recitation of the 1988 report and was based on the same
examination that anchored the 1988 narrative. We do not
consider it to be "new" evidence.

Claimant's retirement is an issue that merits further
commission exploration due to the conflicting accounts given.
Hoover asserts that claimant refused employment within her

physical abilities and retired before ever seeking permanent
total disability. Claimant hotly disagrees. Given the removal
of Kang's reports as supporting evidence, the commission's
order is vacated, and the cause must be returned to it on the
retirement issue.

Removing Kang's reports from evidentiary consideration has
another effect. The permanent total disability starting date
set by the commission is the same date as Kang's second report,
so presumably the two are related. If this is the case,
removal of the Kang report leaves the starting date unsupported
by "some evidence" of permanent total disability. This is an
issue that the commission must also address on "remand."

Finally, the appellate court ordered the commission to
review its allocation of costs if, upon "remand," the
commission again awarded permanent total disability. We concur
with this directive.

Accordingly, the judgment of the court of appeals is
affirmed.
Judgment affirmed.
Moyer, C.J., Douglas, Wright, Resnick, Pfeifer and Cook,
JJ., concur.

F.E. Sweeney, J., dissents and would reinstate the order of the Industrial Commission.

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