State ex rel. Hoover Co. v. Industrial Commission

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). [390] 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. [391] Claimant alternately 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.