State ex rel. Jeep Corp. v. Industrial Commission

Per Curiam.

Jeep contends that the Hawkins, Hein and O’Connor reports are not “some evidence” supporting temporary total compensation from March 1, 1987 through August 19, 1987. Appellees counter that some evidence did exist, and that appellant cannot contest the award because appellant: (1) did not appeal the September 18, 1986 order extending temporary total compensation, and (2) was statutorily required to continue payments until compensation was terminated by the commission. Appellees’ arguments fail.

The September 18, 1986 commission decision awarded compensation from “date last paid through 9-29-86 and to continue upon the submission of supporting medical evidence.” Appellees maintain that Jeep, by not appealing this order, consented to pay temporary total compensation so long as claimant submitted “supporting medical evidence” of temporary total disability. Appellees’ statement, while correct, however, ignores the fact that medical evidence of maximum medical improvement is not “some evidence” of temporary total disability. Vulcan Materials Co. v. Indus. Comm. (1986), 25 Ohio St.3d 31, 25 OBR 26, 494 N.E.2d 1125.

Where a statement of maximum medical improvement of an allowed condition is made by the claimant’s doctor, not only is that report not “some evidence” supporting continued temporary total compensation for that condition, it is justification for a self-insured employer to cease temporary total compensation without prior commission hearing. State ex rel. Jeep Corp. v. Indus. Comm. (1991), 62 Ohio St.3d 64, 577 N.E.2d 1095.

We must next determine whether the Hein, Hawkins or O’Connor reports are “some evidence” supporting temporary total disability compensation from March 1, 1987 through August 19, 1987. State ex rel. Burley v. Coil Packing, Inc. (1987), 31 Ohio St.3d 18, 31 OBR 70, 508 N.E.2d 936. Dr. Hein’s narrative clearly is not. Hein’s opinion is not probative over the period preceding his June 24, 1987 exam. It cannot, therefore, support temporary total compensation from March 1, 1987 through June 23, 1987. In contrast, while his opinion is relevant for the period June 24, 1987 through August 19, 1987, Dr. Hein stated that claimant had reached maximum recovery. As a result, his report cannot be considered “some evidence” of temporary total disability over this latter period.

Dr. Hawkins’ report is also not “some evidence” for two reasons. First, State ex rel. Zamora v. Indus. Comm. (1989), 45 Ohio St.3d 17, 543 N.E.2d 87, prohibits the commission from relying on a medical report that the *381commission had earlier found unpersuasive. In Zamora, the claimant simultaneously applied to have an additional psychiatric allowance and to have himself declared permanently totally disabled. The claimant was examined by various specialists, including Dr. Dennis W. Kogut, who stated that the claimant’s depression preceded his industrial injury and that the contribution of the industrial injury to the depression was minimal.

The commission allowed the psychiatric condition and, in so doing, implicitly rejected Kogut’s report. However, ten months later, the commission denied the application for permanent total disability based partially on Dr. Kogut’s same narrative. The claimant challenged the commission’s subsequent reliance on that report, arguing that once rejected, the report was removed from evidentiary consideration. We agreed.

Comparable facts exist here. Jeep, in initially moving to terminate temporary total compensation in 1986, submitted Dr. Hawkins’ report as proof that claimant was not temporarily and totally disabled. In granting temporary total compensation, the commission inherently rejected, at a minimum, the doctor’s conclusion that claimant had attained maximum improvement. The commission then relied on that report in its August 20, 1987 order. Under Zamora, the rejection of that report is sufficient to remove that document from further evidentiary consideration.

Second, even if properly before the commission, Dr. Hawkins’ report concluded that claimant had reached maximum recovery. His report, therefore, did not substantiate a temporary total disability award.

The most controversial reports in this case are Dr. O’Connor’s, particularly his July 22, 1987 C-84 report. Prior to that report, the doctor had, on September 19, 1986 and March 12, 1987, stated that his patient had reached maximum medical improvement. On July 22, 1987, Dr. O’Connor extended claimant’s estimated return-to-work date to August, noting that claimant would “never attain complete recovery.” The appellate court found that this report constituted “some evidence” supporting temporary total compensation. We disagree. Dr. O’Connor’s July 22, 1987 impairment opinion is based in part on degenerative joint disease in both of claimant’s knees, which is not an allowed condition in this claim. As such, the report does not constitute “some evidence.”

In consideration of the above, we reverse the judgment of the court below.

Judgment reversed.

Moyer, C.J., Sweeney, Holmes and Wright, JJ., concur. *382Douglas and Resnick, JJ., dissent. H. Brown, J., not participating.