State ex rel. Chrysler Corp. v. Industrial Commission

[This opinion has been published in Ohio Official Reports at 

81 Ohio St.3d 158

.]




   THE STATE EX REL. CHRYSLER CORPORATION, APPELLEE, v. INDUSTRIAL
                   COMMISSION OF OHIO; GARRETT, APPELLANT.
     [Cite as State ex rel. Chrysler Corp. v. Indus. Comm., 

1998-Ohio-460

.]
Workers’ compensation—Industrial Commission’s award of temporary total
        disability compensation and medical benefits supported by “some
        evidence,” when—Employer not entitled to reimbursement from Surplus
        Fund under former R.C. 4123.515, when.
     (No. 95-561—Submitted August 26, 1997—Decided February 25, 1998.)
  APPEAL from the Court of Appeals for Franklin County, No. 93APD12-1717.
                                  __________________
        {¶ 1} Alford Garrett, appellant, seeks reversal of the Franklin County Court
of Appeals judgment that granted Chrysler Corporation, appellee, a writ of
mandamus to vacate Garrett’s award of temporary total disability compensation
(“TTD”) and medical benefits.
        {¶ 2} Garrett injured his knees on December 21, 1985 while working for
Chrysler’s predecessor, Jeep Corporation.           Chrysler, a self-insured employer,
initially certified Garrett’s workers’ compensation claim for “left knee.” Pursuant
to this allowance, Garrett began receiving TTD in February 1986.
        {¶ 3} In June 1987, Chrysler moved to terminate Garrett’s TTD on the basis
that his condition had become permanent. In August 1987, a district hearing officer
(“DHO”) for the Industrial Commission of Ohio ordered TTD to continue based on
the submission of supporting medical reports, with the permanency issue to be
reassessed later. In November 1987, a DHO granted additional allowances for
“contusion right knee” and “chondromalacia left patella.”                The DHO again
continued TTD with permanency to be reassessed later.
                                  SUPREME COURT OF OHIO




        {¶ 4} On May 17, 1988, a DHO recognized as compensable Garrett’s
additional condition of “aggravation of pre-existing bilateral pat[]ellofemoral
arthritis,” but declared that Garrett’s condition had become permanent. On the
same day, Garrett applied for permanent total disability compensation (“PTD”), and
the DHO ordered TTD to continue pending disposition of that application.1
Chrysler administratively appealed allowance of the new condition without
success.
        {¶ 5} Chrysler timely challenged the allowance in the Lucas County
Common Pleas Court. On August 6, 1990, the common pleas court found, based
on a jury verdict, that Garrett could not participate in the State Insurance Fund for
the aggravated arthritic condition. Chrysler stopped paying Garrett TTD as of that
judgment. But in September 1991, the Lucas County Court of Appeals reversed.
It held that the common pleas court had erroneously denied Garrett’s motion for
summary judgment and that, as a matter of law, Chrysler had conceded
compensability of Garrett’s claim by having certified and paid his 1987 medical
expenses based on a “bilateral patellofemoral osteoarthritis” diagnosis. Garrett v.
Jeep Corp. (1991), 

77 Ohio App.3d 402

, 

602 N.E.2d 691

. Chrysler did not appeal.
        {¶ 6} Pursuant to the court of appeals’ judgment, the commission formally
recognized      Garrett’s     claim     for    “aggravation      of    pre-existing      bilateral
pat[]ellofemoral arthritis” in April 1992. Based on this order, Garrett’s 1988
motion for PTD, and a February 3, 1992 C-86 motion for continued TTD and
authorization for “total replacement of the knee,” a DHO scheduled the cause for
hearing on the Eaton docket. After a January 1993 hearing, a DHO ordered
Chrysler to make up TTD payments stopped after the common pleas ruling and to



1. This commission practice was later invalidated in State ex rel. Eaton Corp. v. Lancaster (1988),

40 Ohio St.3d 404

, 

534 N.E.2d 46

, reconsidered and modified on other grounds (1989), 

44 Ohio St.3d 106

, 

541 N.E.2d 64

, because it continued TTD despite the claimant’s ineligibility due to
permanency/maximum medical improvement.




                                                2
                                January Term, 1998




continue TTD based on submission of medical evidence.               The DHO also
determined that Garrett’s disability, “based upon all the allowed conditions [of left
knee, contusion right knee, chondromalacia left patella, and aggravation of pre-
existing bilateral patellofemoral arthritis], ha[d] not yet reached maximum medical
recovery,” and he authorized surgery to replace Garrett’s right knee. The DHO’s
order was based on “the medical reports of Dr(s), [Robert] Kalb, [Howard]
Rosenblatt & [S.S.] Purewal * * * the claimant’s application, evidence in the file
and/or evidence adduced at the hearing.” Chrysler appealed administratively, but
the commission did not disturb the DHO’s order.
       {¶ 7} In February 1993, Garrett dismissed his May 17, 1988 application for
PTD.
       {¶ 8} Chrysler then requested the instant writ in the court of appeals,
arguing that (1) no evidence established that Garrett’s arthritis, as aggravated by
his 1985 industrial injury, caused his disability and need for medical treatment after
1990, (2) an allowed aggravation of a pre-existing condition does not include
disability attributable to a pre-existing condition, (3) the commission’s May 17,
1988 permanency determination precluded restoration of TTD, and (4) the
commission failed to adequately explain its award of TTD and medical benefits. A
referee recommended granting the writ based on Chrysler’s first and second
argument, without reaching the third and fourth. The referee found, based on the
deposition testimony of Dr. Kalb, Garrett’s attending orthopedic surgeon, that
Garrett’s condition “[was] no worse because of the industrial injury” and, thus, that
no evidence established the required causal connection. The court of appeals
overruled objections, adopted the referee’s report, and granted the writ of
mandamus, but on the ground that Dr. Kalb’s report was too equivocal to constitute
“some evidence” for the commission’s award of TTD and medical benefits.
       {¶ 9} The cause is before this court upon an appeal as of right.
                               __________________




                                          3
                            SUPREME COURT OF OHIO




       Eastman & Smith, Thomas J. Gibney and Ricardo A. King, for appellee.
       Dorothy McCrory & Assoc., Paula Hicks-Hudson and Christopher S. Clark,
for appellant.
                              __________________
       ALICE ROBIE RESNICK, J.
       {¶ 10} This cause presents five issues for our review: (1) Is Dr. Kalb’s
opinion “some evidence” for the award of TTD and medical benefits? (2) Was
Garrett required to prove that the aggravation of his arthritic condition caused his
disability and need for medical benefits? (3) Did the commission’s confirmation
of the DHO’s May 17, 1988 finding that Garrett’s condition was permanent
preclude the commission’s continuation of TTD?           (4) Did the commission
sufficiently explain its reasoning? and (5) Assuming reversal of the writ vacating
Garrett’s award, is Chrysler entitled to reimbursement from the Surplus Fund under
former R.C. 4123.515 due to the commission’s failure to appeal? For the reasons
that follow, we hold that (1) Dr. Kalb’s reports are some evidence to support the
commission’s decision; (2) Garrett was required to and did provide evidence to
establish a causal connection between his injury and disability; (3) the commission
complied with State ex rel. Eaton Corp. v. Lancaster (1988), 

40 Ohio St.3d 404

,

534 N.E.2d 46

, such that the commission’s permanency determination did not
preclude subsequent TTD; (4) the commission’s explanation was adequate under
State ex rel. Mitchell v. Robbins & Myers, Inc. (1983), 

6 Ohio St.3d 481

, 6 OBR
531, 

453 N.E.2d 721

; and (5) Chrysler is not entitled to reimbursement from the
Surplus Fund. Accordingly, we reverse.




                                         4
                                  January Term, 1998




                            Some Evidence and Causation
        {¶ 11} To receive workers’ compensation for conditions developing after
an industrial injury, the claimant must show “not only that his injury arose out of
and in the course of his employment, but that a direct and proximate causal
relationship existed between his accidental injury and his harm or disability.” Fox
v. Indus. Comm. (1955), 

162 Ohio St. 569

, 576, 

55 O.O. 472

, 475, 

125 N.E.2d 1

, 5.
        {¶ 12} The commission relied on the reports of Dr. Kalb and Drs. Purewal
and Rosenblatt, both commission specialists, to grant Garrett TTD and authorize
surgery. Neither the Purewal nor Rosenblatt reports, however, recognized the
aggravation of Garrett’s arthritic condition as allowed by the commission. Thus,
the court of appeals correctly concluded that neither report is evidence tying
Garrett’s injury to his arthritic disability.
        {¶ 13} In April 1988, Dr. Kalb reported:
        “In summary, it is my opinion [Garrett’s] pre-existing patellofemoral
arthritis condition was aggravated by his work-related injury * * *. It is also my
opinion at the present time that he has reached maximum medical improvement
unless further treatment is carried out.            This treatment would consist of
patellectomy or knee arthroplasty and would be expected to improve his condition
and function and possibly allow return to work. His work restrictions after such a
procedure, however[,] would involve limitations to avoid frequent knee flexion
beyond 90 degrees. This would include restrictions on frequent squatting, stair
climbing and ladder climbing activities.
        “With his age, muscle strength, and weight, knee arthroplasty would be
expected to provide a more favorable lasting result than patellectomy. In direct
answer to your question regarding his initial complaints, his symptoms were present
on both sides subsequent to his injury. His impairment would be based upon his
limitation of knee ROM according to the AMA guidelines for impairment.”




                                                5
                             SUPREME COURT OF OHIO




       {¶ 14} In January 1991, Dr. Kalb recommended replacement of Garrett’s
knee and offered this report, apparently to redress inconsistency in two depositions
he had provided in February 1990 for the common pleas court proceedings:
       “As I mentioned in my deposition, it is unusual that an injury such as that
sustained by Mr. Garrett would be expected to produce abrupt, continuous and
progressive symptoms of pain within the knee. My opinion regarding the accident
resulting in substantial aggravation to his knee condition is based as I mentioned
on Mr. Garrett’s history of not having had any problems with his knees of any sort,
nor any requirement for medical treatment for his knees prior to the accident * * *
.
       “* * *
       “In summary, as I mentioned in my deposition, one would not expect an
injury from the side to aggravate or contribute to his patellofemoral arthritic knee
condition. However, one must not ignore the patient’s history of having no pain
prior to the accident with his knees and having had no medical treatment prior to
the accident with his knees. Based upon his history * * * of having [the] onset of
symptoms which have become progressive subsequent to the accident[,] [it] is
logical to conclude that for whatever reason, his pain did develop immediately
subsequent to the accident and therefore it is logical to conclude that the accident
certainly played a role in his symptoms even though his radiographic and
arthroscopic findings would not likely be expected to be substantially different than
prior to the accident. With osteoarthritis or chondromalacia patella, patients are
known in many cases to have rather sudden onset of pain which is continuous
following a relatively minor traumatic event.
       “In review of prior radiographs on patients such as this, it is clear that the
degenerative process had been going on for some time prior to their becoming
symptomatic. It is believed that these conditions may become rather abruptly
painful following minor trauma or in some cases no trauma, due to the final thin



                                         6
                                     January Term, 1998




layer of articulate cartilage being finally worn off exposing direct contact with the
bone beneath.”
        {¶ 15} Dr. Kalb’s reports represent that Garrett’s injury provoked his
arthritic disability; however, Chrysler complains that Dr. Kalb testified differently
during his two depositions.2 According to Chrysler and the court of appeals, Dr.
Kalb’s deposition testimony conceded his uncertainty about the cause of Garrett’s
disability, making his opinion too equivocal to constitute some evidence for the
commission’s decision under State ex rel. Owens-Corning Fiberglas Corp. v.
Indus. Comm. (1994), 

70 Ohio St.3d 263, 265

, 

638 N.E.2d 565, 567

 (commission
cannot rely on a repudiated medical opinion or one that is “merely equivocal”).
        {¶ 16} Chrysler relies on this cross-examination from Dr. Kalb’s first
deposition:
        “Q.      Let me ask you to assume just hypothetically that the events of
December 21st, 1985 did aggravate a pre-existing osteoarthritic condition in Mr.
Garrett’s knees. Is there any way you can say to a reasonable degree of medical
probability that Mr. Garrett’s knees would not be in the same condition that they
are in today, even if the events of December 21st, hadn’t happened? In other words,
can you say that he would not have gotten to the point that he is today even if the
events of December 21st, 1985 hadn’t happened?
        “A.      No, I cannot say that.
        “Q.      And based on the the pre-existing congential problems which were
significant in Mr. Garrett’s knees, it would not be unfair to assume that he would
be in the same condition today that he’s in even if the events of December 21st
hadn’t happened?
        “A.      That is correct.



2. The commission’s orders do not specify reliance on the Kalb depositions, but the parties do not
dispute this.




                                                7
                              SUPREME COURT OF OHIO




       “* * *
       “Q.      So what we’ve got is somebody whose having degenerative
problems in his knees and from a medical standpoint there’s no way that you can
say that his condition is any worse today than it would otherwise have been even if
what happened on December 21st hadn’t happened.
       “A.      That is correct.”
       {¶ 17} Chrysler also relies on this cross-examination from Dr. Kalb’s
deposition taken two weeks later:
       “Q.      So you would agree, would you not, that based on the conditions
that existed in Mr. Garrett’s knees prior to the events of December 21st, 1985 you
would have expected to see just over the normal course of time of degeneration an
increase in symptoms and discomfort in his knees?
       “A.      That is correct.
       “Q.      There is no way that you can say today, Doctor, that Mr. Garrett’s
condition is any worse than it would have been even if the accident hadn’t
happened?
       “A.      That is correct.”
       {¶ 18} In response, Garrett insists that Dr. Kalb rehabilitated his testimony
during the second deposition and with his January 1991 medical report. Garrett
maintains that (1) Dr. Kalb repeatedly attributed Garrett’s disability entirely to the
injury-induced aggravation of his arthritis because Garrett had not experienced
subjective symptoms of the condition before the accident, and (2) Dr. Kalb’s
inconsistency as to the cause of Garrett’s problems was a mistake he later clarified
and corrected. Clarification and correction, Garrett argues, resolves equivocation
and sustains the evidentiary value of expert opinion. We agree.
       {¶ 19} The rule that an equivocal medical opinion is “not evidence” on
which the commission can rely emerged from State ex rel. Jennings v. Indus.
Comm. (1982), 

1 Ohio St.3d 101

, 1 OBR 135, 

438 N.E.2d 420

; State ex rel.



                                          8
                               January Term, 1998




Paragon v. Indus. Comm. (1983), 

5 Ohio St.3d 72

, 5 OBR 127, 

448 N.E.2d 1372

;
and State ex rel. Walters v. Indus. Comm. (1985), 

20 Ohio St.3d 71

, 20 OBR 402,

486 N.E.2d 94

. After reviewing this precedent, State ex rel. Eberhardt v. Flxible
Corp. (1994), 

70 Ohio St.3d 649, 657

, 

640 N.E.2d 815, 821-822

, explained what
constitutes equivocation by a medical expert:
       “[E]quivocation occurs when a doctor repudiates an earlier opinion, renders
contradictory or uncertain opinions, or fails to clarify an ambiguous statement.
Ambiguous statements, however, are considered equivocal only while they are
unclarified. 

Paragon, supra.

 Thus, once clarified, such statements fall outside the
boundaries of 

Jennings, supra,

 and its progeny.
       “Moreover, ambiguous statements are inherently different from those that
are repudiated, contradictory or uncertain. Repudiated, contradictory or uncertain
statements reveal that the doctor is not sure what he means and, therefore, they are
inherently unreliable. Such statements relate to the doctor’s position on a critical
issue. Ambiguous statements, however, merely reveal that the doctor did not
effectively convey what he meant and, therefore, they are not inherently unreliable.
Such statements do not relate to the doctor’s position, but to his communication
skills. If we were to hold that clarified statements, because previously ambiguous,
are subject to Jennings or to commission rejection, we would effectively allow the
commission to put words into a doctor’s mouth or, worse, discount a truly probative
opinion. Under such a view, any doctor’s opinion could be disregarded merely
because he failed on a single occasion to employ precise terminology. In a word,
once an ambiguity, always an ambiguity. This court cannot countenance such an
exclusion of probative evidence.”
       {¶ 20} Here, Dr. Kalb offered two different conclusions as to the cause of
Garrett’s arthritis; however, the contradiction apparently resulted because of
mistake, not uncertainty. His cross-examination testimony was based on the
assumption that Garrett had experienced pain and swelling even before his knee




                                         9
                               SUPREME COURT OF OHIO




injury, which Dr. Kalb later realized was incorrect. On redirect, Dr. Kalb confessed
that he had misunderstood his own operative notes and had drawn a conclusion
contrary to Garrett’s documented prior medical history. When asked to explain the
contradiction, he said:
        “Initially when giving the deposition and answering [Chrysler’s counsel’s]
questions previously and reviewing this operative note on 3-14-86 I read the
sentence: this disorder was made worse by injury.
        “And I assumed that this disorder meant [Garrett’s] complaints related to
his problem.
        “And from that single sentence I was assuming that he had related a history
of some prior problem.
        “In review of the physical examination and history from that date which
was dictated at that time and in more detail, the history and physical examination,
that indicates that that is not the case.
        “In review of my entire record I have no documentation of [Garrett’s] ever
having had a problem or complaining of a problem prior to his injury as noted.
        “And so that was inconsistent.
        “Either that was an inaccuracy on my part; or by his disorder I meant his
congenital disorder, namely chondromalacia patella.
        “So either of those two are possibilities; either my * * * disorder sentence
of 3-14-86 was not accurate; or more likely, I was referring to this disorder being
the congenital problem with his patellofemoral malalignment because that directly
conflicts with the dictated history and physical in terms of his having or not having
had prior symptoms with his knees.”
        {¶ 21} And, on further redirect, the following exchange took place:
        “Q.     Now that you [Dr. Kalb] have had an opportunity to look at the
entire document and to clarify the history, does that change your answers to
[Chrysler’s counsel’s] questions in reference to [Garrett’s] pre-existing condition?



                                            10
                                     January Term, 1998




       “* * *
       “A.       Yes; that is correct.
       “Q.       And in reference to this document, which history is the reliable
history?
       “A.       The history and physical examinations intended to provide the
history. The information dictated on * * * the operative note is designed to give
the indications for the procedure.
       “Q.       So they serve two separate purposes?
       “A.       That is correct.”
       {¶ 22} Whether we or the court of appeals is persuaded by this explanation
is not at issue; ours are not the credibility determinations that count.      The
commission is the exclusive evaluator of the weight and credibility to be given
medical reports of record, and reviewing courts cannot second-guess the
commission’s credibility determinations in mandamus. State ex rel. Pass v. C.S.T.
Extraction Co. (1996), 

74 Ohio St.3d 373, 376

, 

658 N.E.2d 1055, 1058

; State ex
rel. Consolidated Coal Co. v. Indus. Comm. (1997), 

78 Ohio St.3d 176, 177

, 

677 N.E.2d 338, 341

. Thus, review extends only to whether some evidence exists for
the commission’s decision; after that, courts must defer to the commission’s
determination.
       {¶ 23} For these reasons, this court in Eberhardt defended the
commission’s reliance on an ambiguous medical conclusion that was ultimately
clarified by the doctor.        There we concluded that this was a credibility
determination for the commission to make. The same rule must apply when a
physician offers contradictory conclusions by mistake, but later acknowledges the
contradiction and resolves it to the commission’s satisfaction. In both cases, any
uncertainty is destroyed and the reliability of the physician’s statement is
rejuvenated.




                                             11
                              SUPREME COURT OF OHIO




       {¶ 24} Accordingly, we hold that where, as here, an inconsistent or
contradictory medical conclusion can be attributed to mistake, as compared to lack
of knowledge, and testimony or other medical evidence exists from which the
commission could conclude that the mistake was resolved, the commission is able
to rely on that evidence in granting or denying compensation or benefits. See, e.g.,
State ex rel. Owens-Corning, supra, 

70 Ohio St.3d at 266

, 

638 N.E.2d at 567

(Douglas, J., dissenting) (where some evidence exists for the commission’s
decision, it must not be disturbed in mandamus, notwithstanding “[a]rtful cross-
examination”). The court of appeals erred, therefore, in rejecting Dr. Kalb’s
testimony as too equivocal.
       {¶ 25} We also reject Chrysler’s argument that the commission had no
evidence upon which to attribute Garrett’s disability completely to the injury-
induced aggravation of his arthritic condition. This argument is again based on the
theory that Dr. Kalb’s opinion is unreliable, although Chrysler frames it as an attack
on a practice purportedly used by the commission — to attribute disability caused
by a nonallowed pre-existing condition to the allowed aggravation of that condition.
       {¶ 26} The commission cannot compensate claimants unless their disability
results exclusively from an allowed condition. State ex rel. Wean United, Inc. v.
Indus. Comm. (1993), 

66 Ohio St.3d 272, 274

, 

611 N.E.2d 828, 829

. Here, Dr.
Kalb’s reports and testimony satisfy this standard because he attributed Garrett’s
disability entirely to the aggravation of his arthritis, not to the pre-existing
condition. Dr. Kalb concluded that while Garrett probably had arthritic changes
prior to his injury that were detectable by radiological and arthroscopic tests, he
had not experienced symptoms that had prevented him from working at Chrysler
before his injury, which is the test for temporary total disability. State ex rel. Bowie
v. Greater Cleveland Regional Transit Auth. (1996), 

75 Ohio St.3d 458, 461

, 

663 N.E.2d 926, 929

. Thus, contrary to Chrysler’s argument, evidence exists from
which the commission could find that Garrett had no pre-existing disability



                                          12
                                 January Term, 1998




attributable to his pre-existing condition. As State ex rel. Kettering Med. Ctr. v.
Wallace (1994), 

68 Ohio St.3d 588, 589

, 

629 N.E.2d 444, 446

, explained:
       “[The employer’s] argument erroneously assumes that evidence of a pre-
existing condition is prima facie evidence of a pre-existing disability as well. [The
employer], however, ignores that claimant worked without any apparent problems
prior to her industrial accident. Because her [pre-existing] psychological condition
did not affect her ability to work before the accident, [the employer] cannot
persuasively argue that the claimant had a pre-existing emotional disability. See
Marshall v. Ouachita Hosp. (1980), 

269 Ark. 958, 961

, 

601 S.W.2d 901, 902

.
(Appellate court upheld claimant’s contention that although he was a polio victim,
he had no pre-existing disability in the workers’ compensation sense, since he had
been able to work as a lab technician and perform all required tasks for twenty-two
years prior to his work-related accident.)” (Emphasis sic.)
       {¶ 27} Accordingly, we reverse the court of appeals’ finding that the
commission abused its discretion by awarding TTD and medical benefits without
evidence tying Garrett’s disability to his industrial injury.
                     Permanency and Subsequent TTD Award
       {¶ 28} As an alternative basis for affirming the court of appeals’ judgment,
see Morgan v. Cincinnati (1986), 

25 Ohio St.3d 285, 289-290

, 25 OBR 337, 340-
341, 

496 N.E.2d 468, 472

 (where necessary to preserve lower court judgment, R.C.
2505.22 allows appellee to assert assignments of error without filing cross-appeal),
Chrysler argues that the commission had no jurisdiction to award Garrett TTD after
having found his condition permanent and, effectively, at maximum medical
improvement, pursuant to the DHO order of May 17, 1988. We disagree.
       {¶ 29} As mentioned, in State ex rel. Eaton Corp. v. Lancaster, 

40 Ohio St.3d at 407

, 

534 N.E.2d at 50

, we invalidated the commission’s policy, employed
initially here when Garrett filed his PTD application, that permitted its hearing
officers to continue PTD for “lengthy intervals” between the decision to terminate




                                          13
                             SUPREME COURT OF OHIO




TTD due to permanency and the decision to grant or deny PTD. But out of concern
for claimants’ welfare, we did not immediately terminate TTD for those claimants
who were receiving it pursuant to the commission’s defunct procedure. Rather, we
directed the commission to implement a new process for assessing PTD eligibility,
one that did not compromise the TTD requirement that a claimant’s condition
remain temporary while this compensation is paid, and to do so “within ninety days
of [our] decision, or as soon thereafter as is practicable.” (Emphasis added.) 

Id. at 408

, 

534 N.E.2d at 51

. Thus, in that case and others, see, e.g., State ex rel.
Peabody Coal Co. v. Indus. Comm. (1989), 

41 Ohio St.3d 5

, 

534 N.E.2d 347

,
reconsidered and modified on other grounds (1989), 

44 Ohio St.3d 104

, 

541 N.E.2d 74

, we returned causes for the commission to rectify its having continued TTD
despite a prior determination of permanency.
       {¶ 30} In Garrett’s case, Chrysler appealed the allowance of his aggravated
arthritic condition to common pleas court pursuant to former R.C. 4123.519 shortly
after we decided Eaton. As this appeal removed the claim from the commission’s
jurisdiction, State ex rel. Gatlin v. Yellow Freight Sys., Inc. (1985), 

18 Ohio St.3d 246, 249

, 18 OBR 302, 305, 

480 N.E.2d 487, 490

, the commission had little if any
meaningful opportunity to comply with our decision. Only after the court of
appeals reinstated the commission’s order and invoked the commission’s duty to
conduct further consistent proceedings, see former R.C. 4123.519(F) (now R.C.
4123.512[G]) (commission and bureau of workers’ compensation administrator
must execute final court judgment as if it were the commission’s decision), did the
commission have the power and practicable ability to correct the problem Eaton
identified. And the commission made the appropriate correction when it regained
jurisdiction—the commission assigned Garrett’s PTD claim to its “Eaton docket,”
a procedure that sanctioned expedited review of PTD applications in conjunction
with motions to terminate TTD. Cf. State ex rel. Ford Motor Co. v. Indus. Comm.
(1992), 

65 Ohio St.3d 17

, 

599 N.E.2d 261

 (TTD award after permanency



                                         14
                                 January Term, 1998




determination invalidated under Eaton because commission had continuous
jurisdiction over claim and did not expeditiously comply). We have since endorsed
this procedure, State ex rel. Blake v. Indus. Comm. (1992), 

65 Ohio St.3d 453, 455

,

605 N.E.2d 23, 25

; State ex rel. Kinnear Div., Harsco Corp. v. Indus. Comm.
(1997), 

77 Ohio St.3d 258, 265-266

, 

673 N.E.2d 1290

, 1296, and Chrysler offers
neither evidence nor argument to establish that the commission failed to act “as
soon as practicable” in making this assignment. Thus, under these circumstances,
we consider the commission’s response time to our admonition in Eaton to comply
with that decision.      Accordingly, we reject Chrysler’s argument that the
commission’s prior determination of permanency precluded its further award of
TTD to this claimant.
        {¶ 31} For those claimants who were receiving TTD benefits despite a
finding of permanence at the time Eaton was decided, we directed the commission
“as soon thereafter as is practicable, to hold hearings to determine the eligibility of
these claimants for total disability benefits.” (Emphasis added.) Eaton, 

40 Ohio St.3d at 408

, 

534 N.E.2d at 51

. We did not limit the issue at such hearings to a
determination of permanent total disability. Instead, it was contemplated that the
commission would, at these hearings, determine both the claimant’s continued
eligibility for TTD and eligibility for PTD. Otherwise, there would have been no
need for the court in Eaton to consider, as it did, whether “[i]n each case, the relied-
on medical evidence uniformly indicated a permanent condition.” 

Id. at 411

, 534
N.E.2d at 53. Thus, under the present circumstances, there was no need for the
commission to premise its continuing TTD on new and changed circumstances.
        {¶ 32} Eaton notwithstanding, the claimant’s need for surgery, under the
facts of this case, constitutes a new and changed circumstance. It is true, as pointed
out in the concurring and dissenting opinion, that Dr. Kalb predicted in 1988 that
Garrett would benefit from patellectomy, or knee replacement. However, no
request for authorization was made at that time, and this issue was neither presented




                                          15
                              SUPREME COURT OF OHIO




nor decided at the 1988 hearing. It was not until after the 1988 administrative
proceedings that Dr. Kalb, in a report dated September 11, 1989, devised a plan for
claimant to “apply for Worker’s Compensation [sic] approval for bilateral knee
replacement arthroplasty,” noting “progressive pain in both knees” and that such
“knee pain has become intolerable now bilaterally.”
       {¶ 33} Thus, at the time claimant’s condition was found permanent in 1988,
the issue whether claimant would need surgery, and whether such surgery would
improve claimant’s condition, was not litigated and, under these facts, could not
have been litigated. When the advent of further surgery arose after 1988, there was
a new and changed circumstance which justified modification pursuant to R.C.
4123.52. See Stainless Specialty Mfg. Co. v. Indus. Comm. (1985), 

144 Ariz. 12

,

695 P.2d 261

.
                               Adequate Explanation
       {¶ 34} Also to preserve the judgment below, Chrysler proposes that the
commission failed to sufficiently explain its TTD award as required by State ex rel.
Mitchell v. Robbins & Myers, 

6 Ohio St.3d at 483-484

, 6 OBR at 534, 

453 N.E.2d at 724

 (commission must state evidence and give brief explanation for decision to
grant or deny TTD). But rather than attack the commission’s cursory explanation,
Chrysler uses the opportunity to resurrect its “no-evidence-of-causation” argument.
We reject this argument for the reasons already discussed. We further conclude
that while the instant commission order is less than comprehensive, it is at least as
informative as the order in Mitchell, which was vacated due to lack of evidence,
not for inadequate explanation. 

Id. at 484

, 6 OBR at 534, 

453 N.E.2d at 724

.
Accordingly, we cannot grant Chrysler any relief on this basis.
                                  Reimbursement
       {¶ 35} Chrysler also insists that if we reverse in Garrett’s favor, it is still
entitled to reimbursement from the Surplus Fund because the commission failed to
appeal. Again, we disagree.



                                         16
                                     January Term, 1998




         {¶ 36} The source of Chrysler’s asserted right to reimbursement is former
R.C. 4123.515,3 which provided, in part:
         “[I]f the decision of the district hearing officer is appealed by the employer
or the administrator, the bureau shall withhold compensation and benefits during
the course of the appeal to the regional board of review, but where the regional
board rules in favor of the claimant, compensation and benefits shall be paid by the
bureau or by the self-insuring employer whether or not further appeal is taken. If
the claim is subsequently denied, payments shall be charged to the surplus fund
created under division (B) of section 4123.34 of the Revised Code, and if the
employer is a state risk such amount shall not be charged to the employer’s
experience and if the employer is a self-insurer such amount shall be paid to the
self-insurer from said surplus fund.” (Emphasis added.) 137 Ohio Laws, Part II,
3934, 3939.
         {¶ 37} This statute allowed reimbursement only if compensation had been
denied on appeal from the regional board of review. Accord State ex rel. Peabody
Coal Co. v. Indus. Comm. (1989), 

44 Ohio St.3d 104, 105

, 

541 N.E.2d 74, 75

; State
ex rel. Eaton v. Lancaster (1989), 

44 Ohio St.3d 106

, 

541 N.E.2d 64

; and Eaton,

40 Ohio St.3d at 416

, 534 N.E.2d at 58 (Douglas, J., dissenting). Garrett was not
denied compensation at subsequent levels of commission or judicial review; the
TTD and medical benefit awards were left undisturbed. As former R.C. 4123.515
confers no right to reimbursement where the claimant prevails, Chrysler is not
entitled to reimbursement under these facts.


3. R.C. 4123.515 was repealed effective October 20, 1993. On that same date, R.C. 4123.519 was
amended and renumbered R.C. 4123.512, which provides that, “Any action pending in common
pleas court or any other court on January 1, 1986, under this section is governed by former sections
* * * 4123.515 * * * and 4123.519 * * * of the Revised Code.” The present action was not pending
in any court on January 1, 1986. Chrysler contends that any attempt to apply this legislation
retroactively to preclude reimbursement would be unconstitutional. Because we find that former
R.C. 4123.515 confers no right to reimbursement where the claimant ultimately prevails on the issue
of entitlement to TTD, there is no need to address the retroactive application of R.C. 4123.512.




                                                17
                                  SUPREME COURT OF OHIO




         {¶ 38} Having found that some evidence exists for the commission’s
decision and that none of Chrysler’s other arguments justifies the court of appeals’
judgment in Chrysler’s favor, we reverse the order granting a writ of mandamus
and reinstate the commission’s award to Garrett of TTD and medical benefits.
                                                                             Judgment reversed.
         DOUGLAS, F.E. SWEENEY and PFEIFER, JJ., concur.
         MOYER, C.J., COOK and LUNDBERG STRATTON, JJ., concur in part and
dissent in part.
                                    __________________
         LUNDBERG STRATTON, J., concurring in part and dissenting in part.
         {¶ 39} I concur with the majority’s conclusion that the claimant may be
awarded temporary total disability compensation (“TTD”) pending a determination
of claimant’s eligibility for an award of permanent total disability compensation
(“PTD”). However, I dissent from the majority’s decision that Chrysler is not
entitled to be reimbursed for the amount of TTD it paid to the claimant after it was
determined that his condition was permanent.
         {¶ 40} I do not necessarily disagree that the Eaton rationale might justify
continuing TTD, pending the hearing to determine PTD.4 However, the majority
agrees with the claimant’s contention that his condition is not permanent and
therefore TTD should be reestablished. I disagree. The commission cannot
exercise continuing jurisdiction unless new and changed circumstances have


4. In State ex rel. Eaton Corp. v. Lancaster (1988), 

40 Ohio St.3d 404

, 

534 N.E.2d 46

, this court
invalidated a policy instituted by the commission where it continued to award TTD to a claimant
whose condition had been determined to be permanent while the claimant was waiting for a hearing
to award PTD. (The commission has no jurisdiction to award TTD when the claimant’s condition
has been determined to be permanent.) However, in an attempt to prevent this “gap” in coverage of
the benefits, the court essentially ordered the commission to create a procedure whereby the
determination of permanency and the award of PTD occur simultaneously or as close together as
practically possible.
          In this case, the majority has cited Eaton to justify the commission’s continued payment of
TTD to the claimant pending his hearing for PTD.




                                                 18
                                January Term, 1998




developed since the initial order. State ex rel. Bowman v. Indus. Comm. (1992), 

65 Ohio St.3d 317, 319

, 

603 N.E.2d 1000, 1002

. Further, a claimant is not entitled to
TTD when the commission has determined that the claimant’s condition has
become permanent. State ex rel. Jeep Corp. v. Indus. Comm. (1991), 

62 Ohio St.3d 64

, 

575 N.E.2d 1095

.
       {¶ 41} In the case at bar, on May 17, 1988, a DHO recognized that the
claimant’s condition of “aggravation of pre-existing bilateral pat[]ellofemoral
arthritis” had become permanent. Chrysler challenged the allowance of benefits to
the claimant in common pleas court. The jury found that the claimant could not
participate in the State Insurance Fund for the aggravated arthritic condition.
Chrysler stopped paying TTD in 1990. However, the court of appeals reversed.
       {¶ 42} Pursuant to the court of appeals’ judgment, the commission formally
recognized the claimant’s claim for “aggravation of a pre-existing bilateral
pat[]ellofemoral arthritis.” At a rehearing, a DHO ordered Chrysler to make up the
TTD payments stopped after the common pleas court ruling and to continue TTD
based on submission of medical evidence. The DHO also determined that the
claimant’s disability, “based upon all the allowed conditions had not yet reached
maximum medical recovery,” and therefore authorized surgery to replace the
claimant’s right knee. Thus, this issue was fully litigated.
       {¶ 43} The court of appeals’ decision merely affirmed the commission’s
allowance of the claimant’s arthritic condition and that this condition was
permanent.    Since the determination by the commission that the claimant’s
condition had become permanent, there has been no circumstance indicating a
change in his condition.
       {¶ 44} The claimant claims that he had again become temporarily totally
disabled after Chrysler cut off his TTD in August 1990. The claimant cites the
syllabus of State ex rel. Bing v. Indus. Comm. (1991), 

61 Ohio St.3d 424

, 

575 N.E.2d 177

, which states:




                                         19
                             SUPREME COURT OF OHIO




        “Even where temporary total disability compensation payments have been
previously terminated, R.C. 4123.52 grants the Industrial Commission continuing
jurisdiction to award temporary total disability compensation where the claimant
has again become temporarily totally disabled.”
        {¶ 45} The claimant relies upon Dr. Kalb’s reports concerning the
continued deterioration of his condition and need for surgery, arguing that these are
the type of circumstances that justify the commission’s reassessment of his TTD
eligibility.
        {¶ 46} However, an examination of Dr. Kalb’s 1991 report reveals that his
opinion is neither new nor significantly different. Dr. Kalb had predicted that the
claimant would benefit from patellectomy, or knee replacement, back in 1988.
        {¶ 47} Further, the claimant did not suffer a temporary decline in his
condition that again prevented him from returning to work. Rather, his condition
declined steadily, and he never returned to work after the industrial injury. The
claimant’s consistent inability to work distinguishes this case from permitted
exercise of the commission’s continuing jurisdiction to revisit and award TTD
where the claimants were unable to work on two separate occasions, the second due
to a “flare-up” or relapse in a single maximum medically improved condition. See
Bing, 

61 Ohio St.3d at 427

, 

575 N.E.2d at 180

; State ex rel. Navistar Internatl.
Transp. Corp. v. Indus. Comm. (1993), 

66 Ohio St.3d 267

, 

611 N.E.2d 824

. Simply
because a predicted condition or surgery results, the commission should not be
required to reopen every permanency case to restore TTD.
        {¶ 48} When the commission has determined that a claimant’s condition is
permanent, the claimant is not eligible for TTD. State ex rel. Ramirez v. Indus.
Comm. (1982), 

69 Ohio St.2d 630

, 

23 O.O.3d 518

, 

433 N.E.2d 586

. Without new
and changed circumstances, fraud, clerical error, or unauthorized action by an
inferior administrative tribunal, the commission cannot revisit and revise a prior




                                         20
                                January Term, 1998




denial of TTD due to permanency. Bowman, 

65 Ohio St.3d at 319

, 

603 N.E.2d at 1002

.
        {¶ 49} For the aforementioned reasons, the commission had no jurisdiction
to award the claimant TTD after it left the DHO’s 1988 finding of permanency
undisturbed. Accordingly, although I would allow TTD to continue under the
Eaton doctrine pending the final hearing on PTD, I would affirm the portion of the
court of appeals’ decision that held that the commission’s May 17, 1988
permanency determination precluded restoration of TTD.
        {¶ 50} Because I would find that the commission had no jurisdiction to
restore an award of TTD to the claimant after his condition was determined to be
permanent, Chrysler should not be responsible for the payment of TTD after
permanency was determined. As Justice Douglas pointed out in his concurrence in
Eaton, 

40 Ohio St.3d 416

-417, 

534 N.E.2d at 57-58

, an employer should be entitled
to reimbursement for TTD funds erroneously paid under an invalidated procedure
for continuing to award TTD.
        {¶ 51} Accordingly, I would find (1) that the claimant’s condition had not
changed since the May 17, 1988 finding of permanency, (2) that once the claimant’s
condition was determined to be permanent, the commission had no jurisdiction to
restore TTD, and (3) notwithstanding the commission’s lack of jurisdiction to
restore TTD, the commission is authorized to temporarily continue TTD under the
Eaton rationale until a hearing on PTD can be held. I would also find that since the
commission had no jurisdiction to restore TTD to the claimant, Chrysler should be
reimbursed from the Surplus Fund for the TTD payments made to the claimant after
May 17, 1988.
        {¶ 52} For these reasons, I respectfully concur in part and dissent in part.
        MOYER, C.J., and COOK, J., concur in the foregoing opinion.
                               __________________




                                          21