State ex rel. Ohio Presbyterian Retirement Servs., Inc. v. Indus. Comm. (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Ohio Presbyterian Retirement Servs., Inc. v. Indus. Comm., Slip Opinion No. 2016-Ohio-
8024.]

NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.

SLIP OPINION NO. 2016-OHIO-8024
THE STATE EX REL OHIO PRESBYTERIAN RETIREMENT SERVICES, INC.,
APPELLANT, v. INDUSTRIAL COMMISSION OF OHIO ET AL., APPELLEES.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Ohio Presbyterian Retirement Servs., Inc. v. Indus.
Comm., Slip Opinion No. 2016-Ohio-8024.]
Workers’ compensation—Industrial Commission does not have authority to award
an injured worker permanent-partial-disability compensation under R.C.
4123.57(A) when the worker has been previously found to be permanently
totally disabled under R.C. 4123.58 in the same claim.
(No. 2015-1074—Submitted May 3, 2016—Decided December 8, 2016.)
APPEAL from the Court of Appeals for Franklin County, No. 14AP-624,
2015-Ohio-2122.
_______________________
Per Curiam.
{¶ 1} Appellee Sherry L. Redwine was receiving permanent-total-disability
benefits based solely on the psychological condition in her workers’ compensation
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claim. She subsequently applied for permanent-partial-disability benefits based
upon the physical conditions in the same claim.
{¶ 2} Appellee Industrial Commission determined that an injured worker is
not barred from receiving compensation for permanent partial disability for a
condition or conditions in a claim that formed no part of the basis for a prior finding
of permanent total disability in the same claim. Redwine’s employer, appellant,
Ohio Presbyterian Retirement Services, Inc. (“OPRS”), filed a complaint in the
Tenth District Court of Appeals seeking a writ of mandamus to compel the
commission to vacate its order. The court of appeals denied the writ.
{¶ 3} We hold that the commission has no authority to award an injured
worker permanent-partial-disability compensation under R.C. 4123.57(A) when the
worker has been previously found to be permanently totally disabled under R.C.
4123.58 in the same claim, even when the new finding is based on a condition or
conditions in the claim that formed no part of the basis for the prior finding of
permanent total disability. Therefore, we reverse the judgment of the court of
appeals and grant OPRS’s request for a writ of mandamus.
I. Background
{¶ 4} On August 13, 2003, Sherry Redwine was injured at work. She filed
a workers’ compensation claim that was allowed for the following conditions:
lumbosacral strain, radiculopathy right lower extremity, aggravation of pre-existing
degenerative disc disease, depression, and ruptured disc at L4-5 with free disc
fragment.
{¶ 5} Redwine applied for permanent-total-disability compensation. The
commission concluded that Redwine was unable to perform any sustained
remunerative employment due solely to the medical impairment caused by the
allowed psychological condition in her claim and awarded her benefits beginning
July 12, 2010, to continue until her death. The commission relied on the medical
reports of Roberto Madrigal, Ph.D., Thomas W. Heitkemper, Ph.D., and Michael

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E. Miller, M.D. Because the decision was based exclusively on a medical
condition, the commission was not required to consider any nonmedical disability
factors.
{¶ 6} In August 2013, Redwine applied for permanent-partial-disability
compensation. She conceded that she was not entitled to permanent-partial-
disability benefits for her psychological condition (for which she had been granted
permanent-total-disability compensation), but she maintained that she was entitled
to this award based on the physical conditions allowed in her claim.
{¶ 7} A district hearing officer denied her application based on a lack of
statutory authority for concurrent awards under R.C. 4123.57(A) and 4123.58. In
addition, the hearing officer noted that the physical and psychological conditions
were the result of the same workplace injury and under State ex rel. Murray v.
Indus. Comm., 63 Ohio St.3d 473, 588 N.E.2d 855 (1992), a claimant is precluded
from receiving simultaneous benefits for permanent partial disability and
permanent total disability for the same injury.
{¶ 8} On reconsideration, a staff hearing officer concluded that a claimant
is not barred from concurrent compensation for permanent partial disability if it is
based on conditions that were not the basis for the prior finding of permanent total
disability in the same claim. The hearing officer relied in part on the commission’s
analysis of the same issue in claim No. 02-354357 involving a different injured
worker. In that case, the commission determined that the analysis of concurrent
awards focuses on an injured worker’s allowed medical conditions, not the injury
or claim, citing State ex rel. Missik v. Youngstown, 65 Ohio St.3d 189, 602 N.E.2d
633 (1992), and State ex rel. Hoskins v. Indus. Comm., 87 Ohio St.3d 560, 722
N.E.2d 66 (2000).
{¶ 9} OPRS filed a complaint for a writ of mandamus, alleging that there
was no statutory authority for the commission’s order and therefore it was not
supported by some evidence. A magistrate determined that the writ should be

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denied. The magistrate relied on State ex rel. Mosley v. Indus. Comm., 10th Dist.
Franklin No. 13AP-127, 2014-Ohio-1710, and concluded that because the
psychological condition formed the basis for the permanent-total-disability award,
Redwine’s physical conditions could be the basis of permanent-partial-disability
compensation. The court of appeals adopted the magistrate’s decision and denied
the writ.
{¶ 10} This matter is before the court on the direct appeal of OPRS.
II. Analysis
{¶ 11} OPRS seeks an extraordinary writ of mandamus to compel the
commission to vacate its decision of July 24, 2014, in which the commission
concluded that an injured worker is not barred from receiving compensation for
permanent partial disability for a condition or conditions in a claim that were not a
basis for a prior finding of permanent total disability in the same claim. According
to OPRS, the commission’s decision was an abuse of discretion because there is no
statutory authority for concurrent payment of permanent-partial-disability and
permanent-total-disability compensation in the same claim.
{¶ 12} A mandatory writ may issue against the commission if it has
incorrectly interpreted Ohio law. State ex rel. Gassmann v. Indus. Comm., 41 Ohio
St.2d 64, 65, 322 N.E.2d 660 (1975). The issue before us is whether the
commission’s decision to consider Redwine’s application for permanent-partial-
disability benefits, after she was previously awarded compensation for permanent
total disability in the same claim, was supported by the law. We find that it was
not.
A. Statutory authority is absent
{¶ 13} Compensation rights for injured workers are limited to those
conferred by statute. Westenberger v. Indus. Comm., 135 Ohio St. 211, 213, 20
N.E.2d 252 (1939). R.C. 4123.54 provides that with certain exceptions, every
employee who is injured in the course of employment is entitled to receive

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compensation for loss sustained on account of the injury and such medical services
as are provided by the Workers’ Compensation Act.
{¶ 14} There are two types of compensation at issue in this case.
Compensation for permanent partial disability is authorized by R.C. 4123.57(A) for
“the percentage of the employee’s permanent disability * * * based upon that
condition of the employee resulting from the injury or occupational disease and
causing permanent impairment.” It is intended to compensate injured claimants
who can still work. State ex rel. Kaska v. Indus. Comm., 63 Ohio St.3d 743, 746,
591 N.E.2d 235 (1992).
{¶ 15} Compensation for vocational permanent total disability is authorized
by R.C. 4123.58(A) when “the allowed conditions either alone or with nonmedical
disability factors render the claimant unable to do sustained remunerative work.”
State ex rel. Miller v. Indus. Comm., 97 Ohio St.3d 418, 2002-Ohio-6664, 780
N.E.2d 268, ¶ 8. The purpose of permanent-total-disability benefits is “to
compensate an injured worker for impairment of earning capacity.” Ohio
Adm.Code 4121-3-34(B)(1).
{¶ 16} In certain limited instances, the General Assembly has provided for
payment of concurrent awards. For instance, R.C. 4123.57(C) authorizes
compensation for partial impairment in addition to temporary-total-disability
compensation pursuant to R.C. 4123.56, and R.C. 4123.58(E) authorizes
compensation for permanent total disability in addition to scheduled loss benefits
under R.C. 4123.57(B). However, neither R.C. 4123.57 nor 4123.58 expressly
authorizes concurrent payment of permanent-partial-disability and permanent-
total-disability compensation. The conspicuous absence of any reference to
concurrent payment of benefits in the statute “evinces a legislative intent to prohibit

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simultaneous receipt of these benefits.” Murray, 63 Ohio St.3d at 475, 588 N.E.2d
855.1
{¶ 17} The court of appeals in this case justified its decision based on R.C.
4123.95, which mandates a liberal construction of the pertinent statutes in favor of
injured workers. OPRS, citing Armstrong v. John R. Jurgensen Co., 136 Ohio St.3d
58, 2013-Ohio-2237, 990 N.E.2d 568, ¶ 13, and State ex rel. Williams v. Colasurd,
71 Ohio St.3d 642, 644, 646 N.E.2d 830 (1995), argues that R.C. 4123.95 does not
allow a court to read into a statute something that cannot reasonably be implied
from the statute’s language. We agree. R.C. 4123.95 does not authorize courts to
alter the meaning of unambiguous statutory language. Armstrong, ¶ 13. Thus, the
court of appeals could not read into either R.C. 4123.57 or 4123.58 authority to
award concurrent permanent-partial-disability and permanent-total-disability
compensation.
B. Case law does not support concurrent benefits in the same claim
{¶ 18} OPRS also argued that case law does not support concurrent awards
of permanent-total-disability and permanent-partial-disability compensation in the
same claim.
{¶ 19} This court has sanctioned payment of concurrent permanent-partial-
disability and permanent-total-disability compensation in limited circumstances. In
State ex rel. Consolidation Coal Co. v. Indus. Comm., 62 Ohio St.2d 147, 404
N.E.2d 141 (1980), the claimant had been found to be permanently and totally
disabled as a result of coal miner’s pneumoconiosis. He had filed a separate claim
for a work-related low-back injury and had been awarded permanent-partial-

1
Murray construed a version of R.C. 4123.57 in effect prior to 1986. In 1986, the statute was
amended to eliminate temporary-partial-disability compensation and to limit a claimant’s filing of
an application for permanent-partial-disability compensation from after the “latest period of total
disability” to the “latest period of payments [for temporary total disability],” a change most likely
intended to reflect the statute’s elimination of temporary partial disability. Am.Sub.S.B. No. 307,
141 Ohio Laws, Part I, 767.

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disability compensation. The court held that the claimant was entitled to
permanent-partial-disability compensation for the back injury even though he was
already receiving permanent-total-disability benefits as a result of coal miner’s
pneumoconiosis in a different claim. Id. at 149. The court reasoned that this was
consistent with the philosophy underlying the different types of compensation—an
award for permanent and total disability is generally aimed at compensating for
impairment of earning capacity, while benefits for partial disability are more akin
to damages for work-related injuries. Id., citing State ex rel. Gen. Motors Corp. v.
Indus. Comm, 42 Ohio St.2d 278, 282, 328 N.E.2d 387 (1975).
{¶ 20} In State ex rel. Litten v. Indus. Comm., 65 Ohio St.3d 178, 602
N.E.2d 624 (1992), we agreed, following Consolidation Coal, that the claimant was
eligible to pursue permanent-partial-disability compensation for his foot injury
while receiving permanent-total-disability compensation for medical conditions
involving the wrist, back, and shoulder in a different claim.
{¶ 21} Likewise, in Missik, 65 Ohio St.3d 189, 602 N.E.2d 633, we held
that an award of permanent-total-disability compensation based on the injured
worker’s back injury in one claim did not bar eligibility for permanent-partial-
disability compensation for a neck and shoulder injury in a different claim.
{¶ 22} In other cases, we disapproved concurrent or overlapping
compensation in the same claim. Murray, 63 Ohio St.3d 473, 588 N.E.2d 855,
decided consolidated cases, each involving a claimant who had been declared
permanently and totally disabled as a result of workplace injury not specifically
identified in the opinion. Each claimant later applied for permanent-partial-
disability compensation for the same injury. Murray holds that a claimant may not
concurrently receive compensation for permanent partial disability and permanent
total disability for the same injury. The court noted that any statutory “[r]eference
to concurrent payment of [permanent-partial-disability] and [permanent-total-
disability] benefits is conspicuously absent.” Id. at 475.

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{¶ 23} In Hoskins, 87 Ohio St.3d 560, 722 N.E.2d 66, the claimant was
receiving permanent-partial-disability compensation for a work-related injury (not
identified in the opinion), and the commission later granted permanent-total-
disability compensation in the same claim. There was a period during which the
payment of the two awards overlapped. Citing Murray, we held that a claimant
could not receive both types of compensation for the same conditions at the same
time, regardless of the sequence of payment.
{¶ 24} The interchangeable use of the terms “injury,” “body part,” and
“condition,” without additional clarification, has resulted in the inconsistent
application of the law. Murray, 63 Ohio St.3d 473, 588 N.E.2d 855, considered
concurrent awards for the same “injury” within the context of one claim. The court
did not identify the injury, so we may infer that the court intended to include all
allowed conditions by its use of the word “injury.” Hoskins focused on the
sequence of the concurrent payments for the same injury (also not identified) within
one claim. We concluded that it was inappropriate for the two types of benefits to
overlap in the same claim.
{¶ 25} To clarify any perceived inconsistencies in our prior cases, we
reiterate that for purposes of workers’ compensation, an “injury” is “any injury,
whether caused by external accidental means or accidental in character and result,
received in the course of, and arising out of, the injured employee’s employment.”2
R.C. 4123.01(C). A work-related injury is the occurrence that triggers the filing of
a report with the Bureau of Workers’ Compensation to open a claim.
{¶ 26} Once the claim is approved, the injured worker is entitled to receive
compensation and benefits for only the allowed medical condition or conditions set
forth in the claim. Ward v. Kroger Co., 106 Ohio St.3d 35, 2005-Ohio-3560, 830
N.E.2d 1155, ¶ 10. The allowed conditions are narrowly defined medical diagnoses

2
A claim may also be initiated as a result of an occupational disease or accidental death that occurred
in the course of employment. Because this claim does not involve either, we address only injuries.

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supported by medical documentation. Multiple allowed conditions may be
associated with a particular body part. In addition, a psychiatric condition must
arise from a work-related injury or occupational disease to be an allowed condition
that is compensable. R.C. 4123.01(C)(1).
III. Conclusion
{¶ 27} There is no authority for the commission to award an injured worker
permanent-partial-disability compensation under R.C. 4123.57(A) when there has
been a prior award of permanent-total-disability compensation under R.C. 4123.58
in the same claim. The commission abused its discretion when it decided to
consider Redwine’s application for permanent-partial-disability compensation in
the same claim in which she was already receiving permanent-total-disability
compensation. Thus, we reverse the judgment of the court of appeals denying
OPRS’s complaint for a writ of mandamus.
{¶ 28} Our opinion today is consistent with the overall purpose of Ohio’s
workers’ compensation system, which is to provide to workers compensation for
loss sustained on account of a workplace injury. Armstrong, 136 Ohio St.3d 58,
2013-Ohio-2237, 990 N.E.2d 568, ¶ 9. Our conclusion is also reinforced by the
purpose of permanent-total-disability compensation—to compensate for the
impairment of earning capacity. These are lifetime benefits paid to an injured
worker for “the inability to perform sustained remunerative employment due to the
allowed conditions in the claim.” Ohio Adm.Code 4121-3-34(B)(1). It logically
follows that a claimant who is receiving permanent-total-disability compensation
is ineligible for concurrent permanent-partial-disability compensation based on a
different condition in the same claim.
{¶ 29} OPRS demonstrated a clear right to the relief requested and a clear
legal duty on the part of the commission to provide the relief. State ex rel. Gen.
Motors Corp. v. Indus. Comm., 117 Ohio St.3d 480, 2008-Ohio-1593, 884 N.E.2d

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1075, ¶ 9. We therefore reverse the judgment of the court of appeals and grant a
writ of mandamus.
Judgment reversed
and writ granted.
O’CONNOR, C.J., and O’DONNELL, LANZINGER, KENNEDY, and FRENCH, JJ.,
concur.
PFEIFER, J., dissents, with an opinion joined by O’NEILL, J.
_________________
PFEIFER, J., dissenting.
{¶ 30} The majority opinion correctly points out that this court has
sanctioned payment of concurrent permanent-partial-disability and permanent-
total-disability benefits for various injured claimants in the past. Majority opinion
at ¶ 19. The reason concurrent payment of these benefits is sometimes necessary
is that the purpose of permanent-total-disability compensation (to compensate for
impairment of earnings capacity) is different from the purpose of permanent-
partial-disability compensation (to compensate for work-related injuries). State ex
rel. Consolidation Coal Co. v. Indus. Comm., 62 Ohio St.2d 147, 149, 404 N.E.2d
141 (1980), citing State ex rel. Gen. Motors Corp. v. Indus. Comm., 42 Ohio St.2d
278, 282, 328 N.E.2d 387 (1975).
{¶ 31} In this case, the claimant received an award of permanent-total-
disability benefits because her psychological condition makes it impossible for her
to perform sustained remunerative employment. She also sought compensation for
work-related physical injuries. The staff hearing officer concluded that the injuries
were not the basis for the award of permanent-total-disability benefits and awarded
concurrent permanent-partial-disability benefits based on the claimant’s physical
injuries.
{¶ 32} The court of appeals affirmed the award of concurrent benefits.
Today, this court reverses the court of appeals, stating that the commission does not

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have statutory authority to award concurrent benefits, even though nothing in the
statutory scheme specifically prohibits granting concurrent benefits.
{¶ 33} I acknowledge that the statutory scheme also does not specifically
allow concurrent benefits. Unlike the majority, I do not assume that that means
concurrent benefits are prohibited. Instead, I read the statutory scheme liberally in
favor of the injured claimant, as required by R.C. 4123.95.
{¶ 34} If the public policy of this state, as evidenced by the enactments of
the General Assembly, does not countenance the award of concurrent benefits, the
General Assembly could easily amend the statutory scheme. But even though
concurrent benefits have been awarded in the past, as noted in the majority opinion,
the General Assembly has not evinced its desire to prohibit concurrent benefits.
Therefore, I would allow concurrent benefits in this case.
{¶ 35} I would affirm the court of appeals. I dissent.
O’NEILL, J., concurs in the foregoing opinion.
_________________
Vorys, Sater, Seymour & Pease, L.L.P., and Rosemary D. Welsh, for
appellant.
Michael DeWine, Attorney General, and Andrew Alatis, Assistant Attorney
General, for appellee Industrial Commission.
Robert A. Muehleisen, for appellee Sherry L. Redwine.
Philip J. Fulton Law Office, Philip J. Fulton and Chelsea J. Fulton, for amici
curiae Ohio Association of Claimants’ Council and Ohio Association for Justice.
Vorys, Sater, Seymour & Pease, L.L.P., and Robert A. Minor, for amicus
curiae Ohio Self-Insurers Association.
Garvin & Hickey, L.L.C., Preston J. Garvin and Michael J. Hickey, for
amicus curiae Ohio Chamber of Commerce.
_________________

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