Credibility of the evidence


When Kelly Perry severely injured both thumbs in an industrial accident at his job with Viking Forge Corporation in September 2008, his subsequent workers’ compensation claim brought his case before us – the Ohio Supreme Court.

The same day that Perry was injured, Dr. Drew R. Engles performed surgery to partially amputate Perry’s left thumb and to repair his right thumb. Following a period of temporary total disability, Perry returned to light-duty work, and then to his former position with no medical restrictions on February 4, 2009.

Dr. Engles examined Perry on February 18, and reported, “I believe the patient is doing well enough that he may be discharged from active care and no further intervention is anticipated from my standpoint. The patient is currently looking into a possible prosthesis and this can be handled through the occupational therapist…”

But then, on March 2, 2009, Perry was terminated from employment for violating work rules. On March 18, he returned to Dr. Engles and told him that he’d lost his job. He asked to be placed on work restrictions and to continue therapy.

Dr. Engles reported, “With respect to the patient’s request to go back onto work restrictions and for additional therapy, I do not believe this would be prudent. I believe that the patient has maximized the benefit of therapy.” Dr. Engles referred Perry to the occupational branch of his clinic for assistance with obtaining prosthesis and for any other ongoing care.

On April 7, 2009, Perry changed his physician to Dr. Steven Rodgers – and ended his relationship with Dr. Engles – because surgical issues no longer needed to be addressed. Dr. Rodgers placed Perry on restricted duty, and Perry applied for an additional period of temporary-total-disability (“TTD”) compensation to begin April 7, 2009.

A staff hearing officer with the Industrial Commission of Ohio – which handles such matters – awarded Perry TTD compensation. The hearing officer relied on Perry’s testimony that the incident for which he was terminated wasn’t his fault, but rather was caused by a coworker, to support the finding that Perry had not voluntarily abandoned his employment.

The hearing officer also relied on Dr. Rodgers’s medical documentation, and Perry’s testimony, to find that Perry remained temporarily and totally disabled as of April 7, 2009.

Viking Forge filed a complaint with the court of appeals for a writ alleging that the Commission abused its discretion when it ordered TTD compensation for the period after Perry was discharged from employment.

The court of appeals concluded that Perry hadn’t voluntarily abandoned his employment – which would make him ineligible for TTD – and that Dr. Rodgers’s finding of increased pain, loss of sensation, and hypersensitivity, coupled with his intended action for treatment, constituted some evidence upon which the Commission could rely to award TTD compensation. The court denied the writ. After that, Viking filed an appeal with us.

The pertinent law provides for compensation for TTD when an injury prevents a claimant from performing the duties of his position of employment. If a claimant is no longer employed for reasons unrelated to the injury and hasn’t reentered the workforce, he isn’t eligible for TTD compensation, because the injury is no longer the cause of the loss of wages.

The underlying principle is that the employee’s departure from the workplace must be causally related to the injury for the employee to be eligible for TTD compensation.

In a 2003 workers’ compensation case called Ohio Treatment Alliance v. Paasewe, we stated that the medical aspect of an application for TTD compensation that is filed after a claimant’s termination must be carefully scrutinized, particularly when the claimant had been released to work or had actually returned to the former position. The onset of disability is inherently suspect when it coincides with termination of employment.

Viking maintained that there were no new and changed circumstances in Perry’s medical condition to support an award of TTD compensation after Perry’s termination. According to Viking, after Perry was released for work without restrictions on February 4, the only circumstance that changed was that Dr. Rodgers reported that Perry couldn’t work, an opinion that contradicted Dr. Engles’s opinion.

Viking argued that upon careful scrutiny – as required by Paasewe – the evidence didn’t support the Commission’s finding of temporary total disability. In Paasewe, a doctor – without explanation – issued an opinion certifying the claimant as disabled, which repudiated the same doctor’s earlier report in which he had released the claimant for work.

But unlike Paasewe, Perry’s case presented conflicting medical evidence. Dr. Engles said he could no longer provide surgical services for Perry and referred him to a clinic for ongoing care. Perry began treating with Dr. Rodgers, whose opinion differed from Dr. Engles’s opinion.

The Commission is exclusively responsible for evaluating the weight and credibility of evidence and deciding disputed issues of fact. The Commission found the medical documentation from Dr. Rodgers to be credible evidence. We agreed with the court of appeals that the Commission’s evaluation passed the scrutiny required by Paasewe.

Viking also maintained that Perry’s termination was a voluntary departure from the workplace. According to Viking, Perry had received a copy of Viking’s handbook containing disciplinary procedures, yet had been reprimanded several times for violations and, on February 4, 2009, was advised that his next infraction would lead to termination. Viking argued that based on these factors, Perry was ineligible for TTD compensation.

The hearing officer relied on Perry’s testimony that the infraction for which he was terminated was not his fault. The Commission considered this testimony credible and rejected Viking’s argument that Perry had voluntarily abandoned his position.

It was within the Commission’s discretion to rely on Perry’s testimony that he didn’t violate a written work rule. It is not the role of a reviewing court – such as ours – to assess the credibility of the evidence. So long as the Commission’s order is supported by evidence in the record, there is no abuse of discretion.

Consequently, by a six-to-zero vote, we affirmed the judgment of the court of appeals.

By Paul E. Pfeifer

Court of Appeals

Paul E. Pfeifer is a judge in the Ohio Supreme Court of Appeals.

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