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State ex rel Advantage Tank Lines v. Industrial Commission of Ohio11/16/2005
Submitted May 10, 2005
{ } Appellee-claimant, Daniel Marshall, was industrially injured on February 22, 2001, and he filed a workers' compensation claim for physical and psychological conditions related to his accident. Approximately one year later, he applied for and was awarded permanent partial disability compensation ("PPC") based on his physical and psychological conditions. In December 2002, he moved appellee Industrial Commission of Ohio for temporary total disability compensation ("TTC") for his psychological condition.
{ } The commission granted TTC and backdated the award, making it effective for part of the period during which claimant had been paid PPC. Appellant-employer, Advantage Tank Lines ("ATL"), objected to the TTC award administratively but was unsuccessful.
{ } ATL also did not prevail in its appeal to the Court of Appeals for Franklin County. Citing State ex rel. Kaska v. Indus. Comm. (1992), 63 Ohio St.3d 743, 591 N.E.2d 235, the court of appeals held that awarding contemporaneous TTC and PPC was not an abuse of discretion and, therefore, denied ATL a writ of mandamus.
{ } This cause is now before this court on an appeal as of right.
{ } A single issue is presented: May a claimant receive PPC and TTC for the same condition over the same period? Specifically, ATL questions whether a condition underlying a permanent partial disability can at the same time be the basis for a temporary total disability.
{ } R.C. Chapter 4123 sets forth compensable disability in terms of "temporary" or "permanent" and "total" or "partial." These terms have been problematic at times because they are workers' compensation-specific terms of art rather than terms to which standard meanings apply. Thus, to simply look at the everyday meanings of these words and apply logic to deem the terms mutually exclusive is inappropriate.
{ } ATL implicitly recognizes that it can prevail only if "permanency" has the same meaning for purposes of temporary total disability as it has for permanent partial disability. It further acknowledges that in Kaska, we stated that the definition of "permanency" is not the same for temporary total and permanent partial disability. ATL, however, contends that Kaska is not on point, because that case did not deal with contemporaneous payment of TTC and PPC. We disagree.
{ } TTC awards are based exclusively on a claimant's ability to return to his or her former position of employment. R.C. 4123.56; State ex rel. Ramirez v. Indus. Comm. (1982), 69 Ohio St.2d 630, 23 O.O.3d 518, 433 N.E.2d 586. In this context, a determination that a disability is permanent means that the condition will never improve to the point where the claimant can resume his or her former job. Thus, when this determination is made, the disability is no longer considered temporary, so TTC is terminated.
{ } PPC, on the other hand, is completely unrelated to a claimant's ability to return to his or her former position. It is instead akin to a damages award. State ex rel. Gen. Motors Corp. v. Indus. Comm. (1975), 42 Ohio St.2d 278, 282, 71 O.O.2d 255, 328 N.E.2d 387. In this context, "permanent" means the permanent physical or mental diminution of the whole person caused by the industrial injury. It is a baseline, but it does not necessarily imply a static condition. While in the PPC context, "permanency" always represents a level above which a claimant's condition will never improve, it also represents the level to which a claimant's condition can improve, should the condition temporarily worsen. State ex rel. Bing v. Indus. Comm. (1991), 61 Ohio St.3d 424, 575 N.E.2d 177; Kaska.
{ } A claimant'
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