Opinion
No. 82-349
Decided July 6, 1983.
Workers' compensation — Determination of permanent partial disability will not be disturbed, when — Payment of medical bills required of employer, when.
APPEAL from the Court of Appeals for Franklin County.
On August 21, 1973, Elsa Rossetti, appellant, sustained an injury arising from and in the course of her employment with Sears, Roebuck Company ("Sears"), an appellee herein. Her claim with the Bureau of Workers' Compensation was recognized for sprain of the left knee. Sears paid temporary total disability compensation for the period from August 22, 1973, to December 9, 1973, after which appellant returned to work.
On February 22, 1974, appellant reinjured her left knee in the course of and arising out of her employment. It is undisputed that she filed a second application for temporary total disability compensation for the period from February 26, 1974, to March 18, 1974, and that Sears paid this compensation as well as appellant's medical bills for the same period.
On July 11, 1974, appellant filed an application to reactivate her second claim. The application requested payment of temporary total disability compensation and medical bills for the period from April 29, 1974, to "the present," stating that appellant would have returned to work on July 8, 1974. On October 9, 1974, Sears was ordered to pay "compensation from April 28, 1974 to July 7, 1974 and related medical bills." Sears eventually complied with this order but, in the interim, filed an application for reconsideration on October 18, 1974. The application was heard and the order affirmed on December 6, 1974.
Sears appealed to the Columbus Regional Board of Review which affirmed the order on May 15, 1975. Sears' appeal to the Industrial Commission was refused on August 5, 1975. Sears then appealed to the Court of Common Pleas of Franklin County which dismissed the action on September 15, 1976, holding that the order was "as to extent of disability" and therefore not appealable. That decision was affirmed by the Court of Appeals for Franklin County on February 23, 1977.
Appellant filed a second application to reactivate her claim on September 2, 1977, seeking compensation for previous periods of temporary total disability and current permanent total disability. Appellant's physician, Dr. Walter A. Holbrook, reported that she was suffering from permanent total disability. A hearing was held on December 9, 1977, and appellant was ordered examined by a specialist, Dr. William Reynolds. Dr. Reynolds found relator to be suffering from a permanent partial disability of forty percent. Another physician, Dr. John A. Burkhart, described her disability as temporary and total.
After the physicians' reports were filed and following a second hearing the district hearing officer on December 12, 1978, approved payment for medical treatment of the allowed injury, authorized further conservative medical treatment, and ordered Sears to pay temporary partial disability compensation of forty-five percent impairment until the medical evidence indicated otherwise.
Appellant appealed the order to the Columbus Regional Board of Review where it was affirmed on March 29, 1979. Upon further appeal, the Industrial Commission on December 3, 1980, modified the order to require that, in addition to the compensation previously ordered, Sears pay temporary total disability compensation for a back period from July 8, 1974 to September 1, 1975, except for days worked.
Sears has complied with the order to pay forty-five percent temporary partial disability, but has refused to pay medical bills which, it claims, have not been established to be for treatment of the allowed injury. Sears has also refused to pay for the modification made by the commission.
On May 28, 1981, appellant instituted a mandamus proceeding in the Court of Appeals for Franklin County alleging that the commission's orders of December 12, 1978 and December 3, 1980 represent abuses of discretion because they were contrary to evidence and law. Appellant sought a writ to compel the commission to direct Sears to pay the medical bills it had refused to pay, and to pay for the commission's modification. Appellant further sought to compel the commission to award her further temporary total compensation and medical expenses for the period since September 1, 1975. The court of appeals denied the writ in its entirety. Appellant filed a motion for reconsideration which was overruled. Appellant filed a notice of appeal to this court on February 3, 1982. Appellee Sears filed a motion to dismiss the appeal on grounds that it was not timely filed. This court denied the motion on June 9, 1982.
Appellees raise the issue of untimeliness in this appeal also. This court's previous determination is res judicata as to that issue.
The cause is now before this court upon an appeal as of right.
Barrett Barrett Co., L.P.A., and Mr. Walter S. Barrett, Jr., for appellant.
Messrs. Vorys, Sater, Seymour Pease, Mr. Robin R. Obetz and Mr. Robert J. Mulligan, for appellee Sears, Roebuck Co.
Mr. William J. Brown, attorney general, and Mr. Gerald H. Waterman, for appellee Industrial Commission.
This cause presents the issue of whether the writ of mandamus was properly denied. Appellant attacks the decision of the court of appeals on four grounds.
First, appellant contends that there was no evidence upon which the commission could reasonably have relied with regard to their decision affirming the determination that appellant suffers a permanent partial disability of forty-five percent.
The evidence before the commission was comprised of three doctors' reports. Dr. Holbrook considered relator to be permanently totally disabled. Dr. Burkhart considered relator to be temporarily totally disabled. Dr. Reynolds considered relator to be forty percent permanently partially disabled. The commission has wide discretion in the determination of factual matters. Dr. Reynolds' report provided some evidence to support the commission's determination that relator was forty-five percent permanently partially disabled. This court has consistently held that a decision of the Industrial Commission will not be disturbed where the record contains sufficient evidence to support it. State, ex rel. Allerton, v. Indus. Comm. (1982), 69 Ohio St.2d 396 [23 O.O.3d 358]. The award pursuant to R.C. 4123.57 (A) was therefore justified.
Appellant's second argument is that R.C. 4123.515 and 4123.519 require that a self-insured employer pay benefits beyond those awarded during the pendency of an appeal. R.C. 4123.515, as amended January 17, 1977, provided in pertinent part:
"* * * where the regional board rules in favor of the claimant, compensation and benefits shall be paid * * * by the self-insuring employer whether or not further appeal is taken. * * *"
This amendment did not go into effect until January 17, 1977, and has no application with respect to claims filed prior to its effective date. Furthermore, the order from which the appeal was attempted provided for temporary total benefits only through July 7, 1974, based upon the report of appellant's doctor that she would return to work on July 8, 1974. Appellant did not apply for any additional temporary total disability until September 2, 1977, when she filed her second application to reactivate her claim.
R.C. 4123.519 provides in pertinent part:
"An appeal from a decision of the commission or any action filed in a case in which an award of compensation has been made shall not stay the payment of compensation under such award or payment of compensation for subsequent periods of total disability during the pendency of the appeal. * * *"
The order of October 9, 1974, directed Sears to pay appellant temporary total disability compensation for the period from April 28, 1974 to July 17, 1974. Sears complied with that order during a series of unsuccessful appeals which concluded on February 23, 1977. Appellant contends that R.C. 4123.515 and 4123.519 mandate that whatever the rate of compensation, it should have been paid throughout the appeal process. This is clearly not the law. The appeal process could not begin until after the expiration date of the disability award. R.C. 4123.519 requires that awards made not be stayed during the pendency of an appeal, and not, as appellant contends, that the penalty for appeal is the payment of awards neither applied for nor determined to be due.
Appellant's third argument is that Sears should be compelled to pay the December 3, 1980 award of temporary total disability compensation for the period from July 8, 1974 to September 1, 1975. Appellee Sears contends that R.C. 4123.52 invalidates that award.
R.C. 4123.52 provides in pertinent part:
"* * * [T]he commission shall not make any such modification, change, finding, or award which shall award compensation for a back period in excess of two years prior to the date of filing the application therefor."
The application requesting temporary total disability compensation for the above-mentioned back period was filed on September 2, 1977, or just over two years after the last day of the back period. We therefore agree with appellee that the commission was without jurisdiction to make the modification affecting that period. The court of appeals did not address this issue in its decision. The denial of the writ in regard thereto was, nevertheless, proper.
Appellant finally argues that Sears should be compelled to comply with the order approving payment for medical treatment of the allowed injury.
Sears has refused to pay a number of appellant's medical bills on the ground that it has only been ordered to pay bills related to the allowed injury, and has complied with that order to the extent to which such bills have been so specified. The court of appeals held that the commission, as the only appropriate forum for the determination of which bills are so related, is where appellant should seek her relief. The district hearing officer's order of December 12, 1978, however, was sufficiently clear. Sears should present any medical bills it wishes to dispute to the commission, requesting that they be disapproved. Otherwise, Sears must pay the bills submitted by appellant.
Appellant has failed to establish the requirements for a writ of mandamus except with regard to the payment of medical bills. In that regard only, the judgment of the Court of Appeals for Franklin County is reversed and a writ is allowed accordingly. In all other respects the judgment is affirmed.
Judgment reversed in part, and affirmed in part.
CELEBREZZE, C.J., W. BROWN, SWEENEY, LOCHER, HOLMES, C. BROWN and J.P. CELEBREZZE, JJ., concur.