State ex rel. Evans v. Pepsi-Cola Bottling Co.

Per Curiam. As this court stated in State, ex rel. Ramirez, v. Indus. Comm. (1982), 69 Ohio St. 2d 630, 632 [23 O.O.3d 518], R.C. 4123.56 provides that an employee is entitled to be paid temporary disability benefits when injured and unable to work until one of the following three things occurs: (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. The statute specifically refers to the capability of an employee of “returning to his former position of employment.” Although the court of appeals in this case found that the Industrial Commission had not abused its discretion because it determined that relator was able to return to most of the responsibilities of her former position of employment on the strength of Dr. Brown’s report, a close reading of that report reveals that Dr. Brown did not state that claimant was capable of returning to her former position of employment. Indeed, Dr. Brown’s report states specifically that from his examination, Evans “should not be pushing against the skid on the palletizer.” As we noted in State, ex rel. Horne, v. Great Lakes Constr. Co. (1985), 18 Ohio St. 3d 79, 80, “[t]he phrase ‘and unable to work’ means the workers’ compensation claimant is unable to return to his former position of employment. The phrase ‘former position of employment’ means the position the claimant held when he was injured.” Thus, since the only evidence relied upon by the Industrial Commission below stated that the claimant should not perform the same task she was required to perform prior to her injury, there was no evidence upon which the Industrial Commission could rely for its determination that Evans is now able to work within the meaning of the workers’ compensation statutes. Accordingly, the Industrial Commission abused its discretion, and the remedy of mandamus could be available to Evans. State, ex rel. Hutton, v. Indus. Comm. (1972), 29 Ohio St. 2d 9 [58 O.O.2d 66]. Therefore, we reverse the judgment of the court of appeals, grant the writ, and remand the cause to the Industrial Commission to take evidence and to consider whether on March 21, 1983 relator was capable of returning to her former position of employment. Judgment reversed, writ granted and cause remanded. Celebrezze, C.J., Sweeney, C. Brown and Douglas, JJ., concur. Locher and Wright, JJ., concur in judgment only. [119] Holmes, J., dissents.