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State ex rel Advantage Tank Lines v. Industrial Commission of Ohio6/29/2004
(REGULAR CALENDAR)
DECISION
IN MANDAMUS ON OBJECTIONS TO THE MAGISTRATE'S DECISION
. Relator, Advantage Tank Lines, filed this original action in mandamus. Pursuant to Civ.R. 53 and Loc.R. 12(M) of the Tenth District Court of Appeals, the matter was referred to a magistrate of this court. On February 20, 2004, the magistrate rendered his decision, including findings of fact and conclusions of law, wherein he recommended denial of the writ. (Attached as Appendix A.) Relator timely filed objections to the magistrate's decision, which objections are now before the court.
.The legal question presented in this case is whether a workers' compensation claimant can permissibly receive an award of permanent partial disability ("PPD") compensation under R.C. 4123.57 while concurrently receiving temporary total disability ("TTD") compensation under R.C. 4123.56 for the same allowed condition. For the reasons that follow, as well as those elucidated by the magistrate, we answer this query in the affirmative.
.Respondent, Daniel Marshall ("the claimant"), sustained injuries in the course and scope of his employment with relator on February 22, 2001. Roughly one year later, the claimant filed his application for determination of percentage of PPD. Nine months after that, on December 16, 2002, he filed his motion for TTD compensation, seeking such compensation for the period certified by his treating physician; that is, from the date of injury through the estimated return-to-work date of June 30, 2003. This TTD motion was filed just six days after a staff hearing officer for respondent, Industrial Commission of Ohio ("the commission"), determined that the claimant has a permanent 41 percent whole person impairment.
.The timing of the claimant's filings seeking compensation results in a procedural posture in which the claimant was, at the same time, seeking a determination that he was partially and permanently impaired as a result of both of his allowed conditions, and that he was totally and temporarily disabled as a result of one of his allowed conditions. Relator argues that if the claimant was only temporarily disabled for purposes of R.C. 4123.56, then he could not have been, at the same time, permanently impaired to any degree as a result of the same condition.
.The magistrate determined otherwise, based upon controlling case law, and upon the language and purposes of R.C. 4123.56 and 4123.57. In its objections, relator argues that the magistrate erred in determining that the two awards in this case may be given concurrently, that the magistrate misapplied the law, that he did not adequately define the term "permanent" as it pertains to PPD, and that he did not make any findings or conclusions that support the commission's determination that the claimant had sustained any permanent partial disability.
.We find that the magistrate did set forth the meaning of "permanent" as it relates to PPD, correctly applied the law and made adequate and appropriate findings supporting his recommendation of denial of a writ of mandamus. The magistrate cited to the case of State ex rel. Kaska v. Indus. Comm. (1992), 63 Ohio St.3d 743, 591 N.E.2d 235, in which the Supreme Court of Ohio held that prior PPD awards do not preclude later TTD compensation based on the same allowed conditions. The court noted that R.C. 4123.56 and 4123.57 do not indicate whether a PPD award will preclude later receipt of TTD compensation. It further noted that the only contemporaneous reference to these two statutes specifies that PPD awards are to be in addition to TTD compensation paid for the same injuries. In Kaska, the court rejected the argument t
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