State ex rel. Tilley v. Industrial Commission

Per Curiam. Eligibility for temporary total disability compensation requires, among other things, that the disabling medical condition(s) are not yet permanent, i.e., not maximally medically improved. See State ex rel. Ramirez v. Indus. Comm. (1982), 69 Ohio St.2d 630, 23 O.O.3d 518, 433 N.E.2d 586; R.C. 4123.56(A). Dr. Fallon assessed maximum medical improvement, prompting the termination of claimant’s temporary total disability compensation. Claimant successfully disqualified Fallon’s report in the court below, arguing that Fallon did not consider aggravation of DDD in finding maximum medical improvement. Mt. Carmel disputes Fallon’s obligation to consider the condition, but alternatively argues that if Fallon were required to consider it, review of his report establishes that he did. Mt. Carmel asserts further that disqualification of the Fallon report violates State ex rel. Zamora v. Indus. Comm. (1989), 45 Ohio St.3d 17, 543 N.E.2d 87. For the reasons to follow, we find in claimant’s favor. We address Mt. Carmel’s alternative contention first. A review of Fallon’s report contradicts Mt. Carmel’s assertion. Dr. Fallon’s only mention of claimant’s DDD is his acknowledgment of an MRI confirming its presence. Fallon does not independently verify its existence nor does he venture an opinion as to causal relationship. Nothing in his report implies that DDD was taken into account when maximum medical improvement was assessed. Mt. Carmel responds that notwithstanding Fallon’s failure to consider claimant’s DDD, his report is still “some evidence” supporting the commission’s decision. We again disagree. When multiple conditions prevent a claimant’s return to the former position of employment, it is imperative that a permanency determination include consideration of all allowed conditions. This is because an improvement in an allowed condition that was not considered may elevate claimant’s overall condition to the point where claimant can work. Thus, a [527] permanency-based denial of temporary total disability compensation that does not examine every allowed condition is incomplete. Contrary to Mt. Carmel’s representation, this principle does not conflict with State ex rel. Rouch v. Eagle Tool & Machine Co. (1986), 26 Ohio St.3d 197, 26 OBR 289, 498 N.E.2d 464. In Rouch, the claimant sought, among other things, temporary total disability compensation. Dr. Turton evaluated claimant’s allowed psychiatric condition and concluded that it did not prevent a return to the former job. Dr. Reynolds examined claimant’s physical condition and determined that it also did not bar a return. The commission denied temporary total disability compensation based on these two reports. The claimant in Rouch challenged the denial based on State ex rel. Anderson v. Indus. Comm. (1980), 62 Ohio St.2d 166, 16 O.O.3d 199, 404 N.E.2d 153. Anderson, since overruled, prohibited the commission, in determining whether a disability was due to a combination of allowed conditions, from relying on any medical report in which the physician did not evaluate the combined effects of the allowed conditions. Rouch modified Anderson, holding: “ * * * [W]e now recognize that it is impracticable to require, through hyper-technical evidentiary rules, that physicians pretend to be specialists in all fields of medicine. This court should not usurp the rule of the'commission in determining disability by creating arbitrary exclusionary rules that eliminate evidence the commission may deem credible and relevant. We hold that the Industrial Commission, in determining whether a claimant is disabled due to the combined effect of two or more allowed conditions, may base its finding upon the medical report of a physician who examines the claimant with regard to one of the allowed conditions and recognizes the existence of the other allowed condition(s) by referring to them in his report. We further hold that the commission, in making this disability determination, may consider and rely on a medical report in which an examining physician evaluates a claimant only with regard to the condition that relates to the physician’s particular area of expertise.” Id. at 199, 26 OBR at 291, 498 N.E.2d at 467. In citing the above holding, Mt. Carmel misses the distinction between this case and Rouch. In Rouch, compensation was denied based on the reports of Dr. Turton and Dr. Reynolds. While Turton did not examine claimant’s orthopedic condition, Reynolds did. Conversely, Reynolds did not evaluate claimant’s psychological condition, but Turton did. Thus, between the two doctors, all allowed conditions were medically evaluated and were considered by the commission. In this case, the commission did not rely on any report that considered the allowed DDD condition. Thus, while Rouch excuses Fallon’s failure to evaluate DDD, it does not excuse the commission’s failure to consider it utilizing other evidence. [528] Mt. Carmel lastly asserts that disqualification of Fallon’s report violates Zamora. This argument fails as well. In Zamora, the claimant sought an additional allowance for “aggravation of depression.” Dr. Kogut examined claimant and concluded that claimant’s depression preceded his industrial injury. He also opined that the contribution of the injury to any current depression was minimal. A regional board of review, however, relying on another physician’s report, allowed the additional condition. That order was administratively affirmed. The claimant in Zamora later moved for permanent total disability compensation. The commission denied his application, based largely on Dr. Kogut’s report. Claimant challenged the denial, arguing that the commission’s reliance on Dr. Kogut’s report was improper, since it had implicitly rejected that report when it additionally allowed the psychological condition. We agreed, writing: “[I]t would be inconsistent to permit the commission to reject the Kogut report at one level, for whatever reason, and rely on it at another. Accordingly, the Kogut report cannot constitute some evidence that Zamora is not permanently and totally disabled.” Id. at 19, 543 N.E.2d at 89. Mt. Carmel attempts to equate this case with Zamora. It notes that the commission had earlier relied on Fallon’s report when it allowed the DDD condition. Mt. Carmel contends that to hold the commission cannot rely on Fallon now would create the kind of inconsistency that Zamora prohibits. This contention lacks merit. The relevant chronology in this case renders Zamora inapplicable. Zamora is properly invoked when the commission tries to revive evidence that was previously deemed unpersuasive. Thus, unless rejection preceded reliance, Zamora does not apply. Here, the commission’s initial encounter with Fallon’s report generated reliance on that report, not rejection. Revival is not an issue. We find, therefore, that the commission’s declaration of maximum medical improvement is an abuse of discretion absent its consideration of claimant’s degenerative disc disease. Accordingly, the judgment of the court of appeals is affirmed. Judgment affirmed. Moyer, C.J., Douglas, Resnick, F.E. Sweeney, Pfeifer, Cook and Lundberg Stratton, JJ., concur.