State ex rel. Ramirez v. Industrial Commission

Clifford F. Brown, J. This case raises the following question. Is temporary total disability as used in R. C. 4123.56 a disability which prevents a worker from returning to his former position of employment? The answer is affirmative, for the following reasons. The pertinent portions of R. C. 4123.56, temporary disability compensation, provide as follows: “In the case of temporary disability, an employee shall receive sixty-six and two-thirds per cent of his average weekly wage so long as such disability is total, * * * . — 632 — “Payments shall continue pending the determination of the matter, however payment 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 * * * .” The Court of Appeals in this case correctly and unanimously determined that, “An employee is entitled to be paid temporary total disability when injured and unable to work until one of the following three things occur: (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.” R. C. 4123.56, as excerpted above, specifically refers to the capability of an employee “to return to his former position of employment.” “Position” is defined by Webster’s Third New International Dictionary as “the group of tasks and responsibilities making up the duties of an employee.” The Industrial Commission, in determining whether relator was entitled to temporary total disability, did not consider whether he was capable of returning to his former position of employment as a construction laborer. The question whether temporary total disability means a disability which prevents a worker from returning to his former position of employment has been decided by this court in State, ex rel. Consolidation Coal Co., v. Indus. Comm. (1979), 58 Ohio St. 2d 127, where, in a per curiam opinion, at pages 127-129, inter alia, quoting pertinent parts of the medical report of claimant Hall’s examining physician, we held: “Claimant * * * applied for * * * benefits claiming total disability due to coal miner’s pneumoconiosis. * * * However, the Industrial Commission reversed and found that the claimant had become totally disabled. * * * The Court of Appeals, in — 633 — upholding the commission and denying the writ, quoted from the medical report * * * as follows: ‘* * * V. * * * This patient is totally disabled from engaging in any further coal mine employment.’ The Court of Appeals found this report to be sufficient evidence to support the commission’s finding. * * * A review of the record reveals that the finding of the commission is supported by evidence of probative value. The judgment of the Court of Appeals is, therefore, affirmed.” The Court of Appeals for Franklin County in the same case, State, ex rel. Consolidation Coal Co., v. Indus. Comm. (January 31, 1978), No. 77 AP-579, unreported, stated that the Industrial Commission was correct in finding claimant Hall temporarily totally disabled, in this language: “In considering temporary total disability we find it is only necessary to consider the job for which the claimant was employed.” In the Consolidation Coal Co. case, the Industrial Commission took an opposite posture than in the present Ramirez case, and stated correctly in its brief in this court the following proposition of law: “The Court of Appeals correctly stated and applied a different standard for total disability when a workers’ compensation claim involves temporary total disability, rather than a claim for permanent total disability.” 1184 Ohio Supreme Court Briefs and Records, 3d Series, Case No. 78-375. That different standard urged by the Commission was the “former position of employment” test. As reflected in the record and briefs in Consolidation Coal and in this case, we are presented with the same legal question in both cases, namely, whether a claimant is temporarily totally disabled when he cannot return to his former position of employment. Since the Consolidation Coal case in 1979, this court has considered only one other case on the question of temporary total disability. In State, ex rel. Ianiro, v. Indus. Comm. (1979), 60 Ohio St. 2d 152, this court properly affirmed the Court of Appeals for Franklin County’s denial of a writ of mandamus to the claimant, who challenged a commission order denying his claim for temporary total disability. In that case, the record — 634 — clearly revealed that claimant could return to his former position of employment. Ianiro, supra, at page 153. The holding against claimant in Ianiro is consistent both with our decision in favor of claimant in Consolidation Coal Co. and our holding in favor of relator in the present Ramirez case. This court has repeatedly stated, as in State, ex rel. Bunch, v. Indus. Comm. (1980), 62 Ohio St. 2d 423, at page 427, that the purpose of temporary total disability benefits under R. C. 4123.56 is to compensate for loss of earnings, as contrasted with the purpose of permanent total disability under R. C. 4123.58 to compensate for impairment of earning capacity. Therefore, those cases which involve the question of permanent total disability, e.g., State, ex rel. Nemeth, v. Indus. Comm. (1953), 96 Ohio App. 167, 170, are irrelevant. This court agrees with the Court of Appeals in this case that the Industrial Commission abused its discretion because it did not consider whether relator was able to return to his former position of employment either partially or completely. According to relator’s affidavit, he was not able to work in that capacity. However, that issue was not considered either by the examining specialist or by the Industrial Commission. We affirm the Court of Appeals judgment granting a writ of mandamus and ordering the Industrial Commission to take evidence and to consider whether relator was capable of returning, either partially or completely, to his former position of employment on December 3, 1979. If relator was not able to return to his former position of employment at that time, the Industrial Commission is ordered to pay him temporary total disability compensation from December 3, 1979, until he is no longer eligible for such payment by virtue of the happening of one of the events described in this decision. Judgment affirmed. W. Brown, Sweeney and Patton, JJ., concur. Celebrezze, C. J., Locher and Krupansky, JJ., dissent. Patton, J., of the Eighth Appellate District, sitting for Holmes, J.