AT & T Technologies, Inc. v. Industrial Commission

Wright, J., dissenting.

The majority holds that when the attending physician’s report supports compensation for temporary total disability (“TTD”), the termination date for TTD benefits paid by self-insured employers is the date on which the district hearing officer orders the payments terminated. R.C. 4123.56 does not compel such a holding because the statute is silent on the issue of the termination date for TTD benefits. Moreover, under the rule adopted by the majority, the date chosen, as in the case here, will often not be supported by the evidence presented to and relied upon by the district hearing officer. We have previously held that the Industrial Commission must set forth the evidence it relies upon in reaching its conclusions. The same requirement should hold true for the termination date of TTD benefits. The evidence in this case does not support the commission’s conclusion that the termination date for appellee’s TTD benefits is April 23, 1987, the date of the final hearing. Accordingly, I dissent.

The statute at issue in this case sets forth the procedure a self-insured employer must follow when seeking to terminate the payment of TTD benefits. It does not answer the question of which date marks the stopping point. R.C. 4123.56 provides that when an employer who has elected to pay compensation direct disputes the attending physician’s report that the claimant remains temporarily totally disabled, the employer may not unilaterally terminate TTD pay*59ments; instead, the employer may terminate TTD payments “only upon application and hearing by a district hearing officer.” R.C. 4123.56. The statute simply does not speak to the issue of the termination date.

In our previous decisions we have held that the commission must state the evidence upon which it relies in reaching its conclusions. See, e.g., State ex rel. Burley v. Coil Packing, Inc. (1987), 31 Ohio St.3d 18, 31 OBR 70, 508 N.E.2d 936; State ex rel. Mitchell v. Robbins & Myers, Inc. (1983), 6 Ohio St.3d 481, 6 OBR 531, 453 N.E.2d 721. The termination date for TTD benefits is a factual conclusion that, like other factual conclusions, must be based on the evidence.

There is no evidence in this case to support the conclusion that TTD benefits shall terminate on the date of the final hearing. The district hearing officer’s termination date order was based on the report of Dr. Larrick, who examined appellee on April 3, 1985 and concluded in a report filed with the commission on April 15, 1985 that appellee had achieved “maximum medical improvement,” and the report of Dr. Fallon, the commission’s doctor, who examined appellee on March 3, 1987 and reached the same conclusion. This evidence supports two possible termination dates: April 3,1985 and March 3, 1987. It does not support the date actually chosen. Because of the unfair result achieved herein and because our previous decisions do not allow the commission to reach conclusions that are not supported by the evidence, I respectfully dissent.