STATE, EX REL. COPELAND CORP., v. INDUS. COMM., 53 Ohio St.3d 238 (1990)

559 N.E.2d 1310

THE STATE, EX REL. COPELAND CORPORATION, APPELLANT, v. INDUSTRIAL COMMISSION OF OHIO ET AL., APPELLEES.

No. 89-241Supreme Court of Ohio.Submitted April 17, 1990 —
Decided August 29, 1990.

Workers’ compensation — Employee entitled to be paid temporary total disability when injured and unable to work, when.

APPEAL from the Court of Appeals for Franklin County, No. 87AP-477.

Page 239

Appellee-claimant (“claimant”), Kenneth R. Bartrug, sought temporary total disability compensation for injuries sustained in the course of and arising from his employment with appellant Copeland Corporation. Appellee Industrial Commission (“commission”) awarded temporary total disability compensation after determining that claimant’s disability prevented him from returning to his former position of employment and was not yet permanent. The order was based on reports from Drs. Paul H. Dillahunt, John Q. Brown, Donald L. Brown and Daniel E. Braunlin, and Lee Howard, Ph.D.

Appellant filed a complaint in mandamus in the Court of Appeals for Franklin County alleging that the commission had abused its discretion in awarding temporary total compensation. The appellate court found that the commission’s decision was supported by “some evidence” and denied the writ.

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

Stanley R. Stein, for appellant.

Anthony J. Celebrezze, Jr., attorney general, Jenice R. Golson
and Michael L. Squillace, for appellee Industrial Commission.

E.S. Gallon Associates and Richard M. Malone, for appellee Bartrug.

Per Curiam.

An award of temporary total disability compensation must be supported by some evidence that: (1) the claimant is not working, (2) the claimant’s allowed conditions prevent a return to the former position of employment, and (3) the claimant’s disability is temporary. State, ex rel. Burley, v. Coil Packing, Inc.
(1987), 31 Ohio St.3d 18, 31 OBR 70, 508 N.E.2d 936; State, ex rel. Ramirez, v. Indus. Comm. (1982), 69 Ohio St.2d 630, 23 O.O. 3d 518, 433 N.E.2d 586. Appellant disputes only the commission’s finding that his condition was not permanent. Upon review, however, we find some evidence supporting the commission’s decision.

A disability’s permanency “relates solely to the perceived longevity of the condition at issue.” Vulcan Materials Co. v Indus. Comm. (1986), 25 Ohio St.3d 31, 33, 25 OBR 26, 27, 494 N.E.2d 1125, 1127. The term “permanency” refers to “a condition which will, `* * * with reasonable probability, continue for an indefinite period of time without any present indication of recovery therefrom.'” Id.

In the case before us, Dr. Braunlin stated in his report of September 17, 1986:

“I feel that he [claimant] has likely reached maximal recovery unless he attends a chronic pain and stress center which I feel might be quite helpful in dealing with the multitude of problems of which he still complains. * * * Unless additional improvement is made in a rehabilitation type program, I feel that he has likely reached maximal recovery.”

Dr. Braunlin’s comments are susceptible to differing interpretations. Given his suggestion that claimant may benefit from attendance at a chronic pain and stress clinic, we find that the commission’s interpretation of that report did not constitute an abuse of discretion. It is thus some evidence supporting the commission’s conclusion that claimant’s disability was not yet permanent. The appellate court’s decision is affirmed in part with respect to this issue.

We note that the commission made further temporary total disability compensation contingent on the submission of medical evidence indicating

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claimant’s continued inability to return to his former position of employment. That evidence, however, must also support a finding that claimant’s condition remains temporary. We, therefore, reverse and remand the court of appeals’ decision in part and direct that court to issue a limited writ ordering the commission to base continued temporary total disability compensation on satisfaction of all Ramirez criteria.

Judgment affirmed in part, reversed in part and cause remanded.

MOYER, C.J., SWEENEY, HOLMES, DOUGLAS, WRIGHT, H. BROWN and RESNICK, JJ., concur.