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State ex rel Hutchins v. Industrial Commission of Ohio6/25/2002
rmanent total disability shall be accompanied by medical evidence from a physician *, that supports an application for permanent and total disability compensation. The medical examination upon which the report is based must be performed within fifteen months prior to the date of filing of the application for permanent and total disability compensation. The medical evidence used to support an application for permanent total disability compensation is to provide an opinion that addresses the claimant's inability to work (for example, the claimant will never be able to return to his former position of employment, or will never return to work) resulting from the allowed conditions in the claim(s). * If the application for permanent total disability is filed without the required medical evidence, it shall be dismissed without hearing.
Ohio Adm.Code 4121-3-34(D)(3) provides the following relevant factors to be considered in the adjudication of all applications for permanent total disability:
(a) The burden of proof shall be on the claimant to establish a case of permanent and total disability. The burden of proof is by preponderance of the evidence. The claimant must establish that the disability is permanent and that the inability to work is causally related to the allowed conditions.
(b) In adjudicating an application for permanent and total disability, the adjudicator must determine that the disability is permanent, the inability to work is due to the allowed conditions in the claim, and the claimant is not capable of sustained remunerative employment.
(c) The industrial commission has the exclusive authority to determine disputed facts, the weight of the evidence, and credibility.
(d) All medical evidence of impairment shall be based on objective findings reasonably demonstrable and medical reports that are submitted shall be in conformity with the industrial commission medical examination manual.
As is apparent from the above cited provisions, the burden is on claimant to submit evidence showing that the disability is permanent, that the inability to work is due to the allowed condition(s) in the claim, and that claimant is not capable of performing sustained remunerative employment. Relator contends that the diagnostic tests which were performed prior to Dr. Tesner's report constitute some evidence that he was permanently and totally disabled as of the date those tests were taken. However, this magistrate finds that, while the diagnostic tests indicate that relator suffered from certain conditions, until such time as he was evaluated by Dr. Tesner, there was no evidence in the file that relator was permanently and totally disabled as a result of those allowed conditions. As Dr. Tesner's November 14, 1997 report makes clear, he had been treating relator for some time. However, the record before this court indicates that it was not until November 14, 1997 that Dr. Tesner opined that relator was permanently and totally disabled. Because Dr. Tesner's report is the first credible evidence that relator is permanently and totally disabled as a result of the allowed conditions in the claims, relator has not demonstrated that the commission abused its discretion by relying on the date of that report as the commencement date for the payment of his PTD compensation.
Based on the foregoing, it is the magistrate's decision that relator has not demonstrated the commission abused its discretion by denying his motion to readjust the start date of his PTD compensation and relator's request for a writ of mandamus should be denied.
STEPHANIE BISCA BROOKS, MAGISTRATE
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