State ex rel. Petros v. Connor

Clifford F. Brown, J.,

dissenting. In State, ex rel. Ramirez, v. Indus. Comm. (1982), 69 Ohio St. 2d 630 [23 O.O. 3d 518], this court held that temporary total disability is a disability which prevents a worker from returning to his former position of employment. Neither of the medical reports relied upon by the commission concludes that relator is able to return to his former position of forklift operator, which involves rigorous use of his upper extremities. Moreover, medical reports submitted in relator’s behalf state that he will never be able to return to his previous employment. I dissent accordingly.

The report of Dr. Ramachandran, expressly relied upon by the commission, indicates that relator will never be able to resume regular work, but will be capable only of light work. This conclusion obviously supports a finding of temporary total disability within the meaning of Ramirez, supra, since it clearly states that relator’s disability will prevent him from returning to his former position of employment.

Dr. Paloski’s report, also cited by the commission in support of its order, concludes that relator is only temporarily and partially disabled in the low range of twenty-five percent. His report is silent on relator’s ability to resume work as a forklift operator. Thus, this report is not probative under Ramirez.

It is clear from the foregoing that the medical evidence upon which the commission relied in its denial of temporary total disability benefits is completely deficient under this court’s dictates in Ramirez. The only evidence before the commission which considers the issue of temporary total disability as defined in Ramirez is contained in the reports of Drs. Euliano and Ramachandran.

Dr. Euliano’s report concludes that “[i]t is extremely doubtful that this patient would ever be able to return to his previous form of work which in*179volved heavy use of his upper extremeities [sic]. It may be possible that he could be retrained for lighter duty or work involving the use of the right arm only.” The report of Dr. Ramachandran, as noted previously, also concludes that relator is fit only for light work. Both these reports plainly and unequivocally support a finding of temporary total disability as defined in Ramirez.

The only remaining report, not cited by the commission in its order, is that of Dr. Cummings, which states that relator is “* * * able to carry out all but the most physically rigorous activities with his left upper extremity.” This simply cannot be considered as a statement that relator will be able to return to his former position of employment, as required by Ramirez, since relator’s former position involved extremely rigorous use of his upper extremities.

Clearly, the only evidence before the commission which considered the issue of temporary total disability as defined in Ramirez was contained in the reports of Drs. Euliano and Ramachandran. As these reports actually support relator’s application for temporary total disability compensation, the commission abused its discretion in denying such application. Where there is no evidence upon which the commission could have based its decision, that decision constitutes an abuse of discretion, and mandamus becomes appropriate. State, ex rel. Kramer, v. Indus. Comm. (1979), 59 Ohio St. 2d 39, 42 [13 O.O.3d 30].

Accordingly, I would grant the relator’s writ and direct the commission to reinstate his temporary total disability benefits.