THE STATE EX REL. KROGER COMPANY, APPELLANT, v. INDUSTRIAL COMMISSION OF 

OHIO, APPELLEE. 

[Cite as State ex rel. Kroger Co. v. Indus. Comm. (1997), 80 Ohio St.3d 483.] 

Workers’ compensation — Award of temporary total disability compensation by 

Industrial Commission not an abuse of discretion, when. 

(No. 95-901 — Submitted October 7, 1997 — Decided December 31, 1997.) 

APPEAL from the Court of Appeals for Franklin County, No. 94APD03-422. 

 Claimant, Wilma C. Williamson, was industrially injured in 1989 while 

working for appellant, Kroger Company. She related the following description of 

her injury to a medical examiner: 

 “She said she was injured while in a meat cooler. The electricity went out 

and she fells [sic] backwards with some boxes falling around her. She injured her 

low back and right shoulder. I asked her if she was scared at the time. ‘Yea, I got 

scared because it was dark and I couldn’t find my way out. It took me a while. 

The fire alarm went off and I thought maybe there was a fire in the store and I was 

locked in there. The door locked after you went in and you had to hit this thing in 

the center of the door to open it.’ ” 

 Her workers’ compensation claim was ultimately allowed for “lumbosacral 

strain; cervical strain; anxiety disorder with panic attacks.” In 1992, claimant 

applied for temporary total disability compensation from June 10, 1991 and to 

continue. She accompanied her motion with a November 6, 1991 C-84 

“physician’s report supplemental” from Dr. Marguerite M. Blythe, her treating 

psychiatrist. Under the heading “Present complaints and condition(s),” Dr. Blythe 

listed “Post Traumatic Stress Disorder (Secondary to Industrial Accident), Panic 

Attacks, Dysthymia.” Objective findings were noted as “Poor sleep, panic attacks 

and nightmares.” Subjectively, she found “feelings of impending doom, terror of 
 2

small spaces such as elevators.” Dr. Blythe stated that claimant’s recovery had 

been delayed because of claimant’s inability to tolerate higher doses of 

medication. An estimated return to work date was given as “possibly 12/92[,] no 

predicted date.” 

 Dr. Blythe submitted two more C-84’s in addition to four narratives. Her 

December 11, 1992 C-84 estimated a January 1, 1994 return to work date. 

Complaints were listed as “anxiety, trouble leaving house, fear of elevators, 

[decreased] sleep.” A decreased ability to cope, weight loss, depression, and 

nerves were also noted. A July 1, 1993 C-84 extended claimant’s disability to 

June 1994, based on “flashbacks, panic, nervousness, [and] trouble sleeping.” 

 Dr. Blythe’s narratives are also significant. On September 13, 1991, she 

wrote: 

 “She [claimant] had no fear of anything prior to the accident. Apparently on 

the day of the accident in addition to the falling objects there had been failure of 

the electricity, a fire bell had gone off, she had gone back into the Kroger Building 

and the lights had gone on and then off and she had been terrified in addition to 

being physically injured. 

 “Since the time of the accident she has been afraid of elevators and small 

spaces. She has been afraid of driving on expressways. She has been afraid of 

doing something that will cause other people harm. I believe that these fears and 

phobias are directly related to the accident and to the trauma she encountered both 

in being in a darkened building and having boxes fall on her, and having a fire bell 

go off that she didn’t know was real or not real, and in her fear of not being able to 

get out of the industrial situation at the time that it occurred. 

 “* * * 
 3

 “My current working diagnosis of Mrs. Williamson is that she has a 

generalize[d] anxiety disorder with panic attacks. I believe that both of these 

problems were caused by the accident which she sustained when working at 

Kroger on June 5, 1989. I believe that her psychiatric condition is a direct result 

of her industrial accident and that it is not an exacerbation or an aggravation of a 

pre-existing condition. I do not believe she had any psychiatric condition prior to 

the accident. 

 “I believe that Mrs. Williamson has some disability from the panic attacks 

and the generalized anxiety disorder. This mostly shows itself as being afraid to 

be in small spaces, such as elevators. This fear is so severe that she will walk up 

eight or ten flights of stairs rather than take an elevator. In addition, she avoids 

driving on the expressways and places where there are loud noises and sudden 

changes. I believe that this interferes with her ability to function and that it would 

also affect her return to work, in that she has problems in dealing with sudden 

changes, which is required in most jobs.” 

 Three weeks later, on October 6, 1991, Dr. Blythe stated: 

 “Ms[.] Williamson had no psychiatric history, prior to her industrial 

accident at Kroger June 5th[,] 1989. At that time, because of a combination of 

being/feeling trapped, lights going off in the building, and fear/smell/sounds of 

possible fire (fire bell went off), Ms[.] Williamson was terrified. Since that time 

she has had problems with nightmares, panic when in small, confined spaces, 

depression, as well as the back pain for which she was treated. 

 “My best diagnosis is that Ms[.] Williamson suffers from Post Traumatic 

Stress Disorder and Panic attacks, both directly related to the industrial accident. 

In addition, she has dysthymia (chronic depression) from the duration of time her 

problems have gone on. These psychiatric illnesses significantly impair her daily 
 4

functioning. For example, she cannot take elevators because of her fear of the 

small spaces after being locked/confined in the refrigerator at Kroger. She sleeps 

badly and often wakes up many times in the night (something which wasn’t [t]rue 

before the accident), leaving it difficult for her to function the next day. She is 

chronically tired, fearful, and at times has such panic attacks she is afraid she is 

going to die immediately. 

 “* * * I feel she is fairly seriously impaired from her psychiatric illnesses 

and given the period this has lasted, has a somewhat guarded prognosis for this 

resolving itself, either with treatment or spontaneously.” 

 Approximately a year later, Dr. Blythe reported: 

 “Ms[.] Williamson is currently being treated for anxiety disorder with panic 

attacks. The current addition of the American Psychiatric Association’s 

Diagnostic and Statistical Manual of Mental Disorders, Revised 3rd Edition 

(DSM-III-R) breaks these two conditions into two separate diagnostic categories, 

300.01 and 300.02. * * * 

 “Concerning Generalized Anxiety Disorder, Ms[.] Williamson never was 

particularly anxious about anything prior to her experience at Kroger in June 1989. 

She now has unrealistic fears about her family * * *. She has unrealistic worries 

about her health * * *. She does have some anxieties related to Panic * * * but not 

only ones related to that, which is why I have given her both diagnoses. I do not 

believe her to be psychotic nor do I believe the anxiety to be part of a depression. 

* * * 

 “* * * 

 “At times in the past she has had specific panic attacks, albeit not often 

enough to merit naming Panic Attacks [as] a primary diagnosis. That is, she does 

not have at present one attack a week; however, by history she did in 1989 and 
 5

probably did shortly before I met her in June 1991. Initially these came ‘out of the 

blue’ and for no reason * * * then she started thinking that certain stimuli caused 

them[,] such as thinking about going into a[n] elevator. Technically, being afraid 

of single things is more related to Phobias * * * which Ms[.] Williamson may also 

have had occur since her accident. However, the intensity of the panic * * * 

happens suddenly and more accurately describes ‘Panic’ than Phobia * * * though 

going into closed spaces can now evoke such panic. This may be the start of 

agoraphobia[,] since that is how people start avoiding p[l]aces they * * * 

mistakenly associate with Panic (and how agoraphobia is believed to start) but I 

did not feel she in any other way meets either the diagnosis of agoraphobia or of 

simple phobia. * * * Because of this I said she had ‘anxiety with Panic attacks.’ 

[T]echnically, there is no DSM-IIIR diagnosis for Panic attacks used simply as a 

symptom. I suppose she could be called Post Traumatic Stress Disorder * * * 

since she has recurrent intrusive recollections of the accident, as well as dreams 

about it; she avoids things that remind her of the accident, such as elevators, 

memories of the accident and feels detached from her surroundings as evidenced 

by the fact she has taken less pleasure in her grandchildren than she expected, and 

has sleep problems, irritability, difficulty concentrating which has lasted more than 

one mo[n]th. I did not call her disorder Post Traumatic Stress as I do not believe 

her accident was caused by ‘an event that is outside the range of human 

experience.’ Some diagnosticians now argue that this is not necessary for this 

diagnosis. * * * 

 “Nevertheless, I believe Ms[.] Williamson has a fairly severe form of 

anxiety, which permeates all aspects of h[e]r life, and is afraid to do some things 

for fear she will have a panic attack or a nightmare. This has markedly curtailed 

her pleasure in life and her ability to function. Whether one calls this Anxiety 
 6

with Panic Symptoms, or Post Traumatic Stress Disorder, or Anxiety with Panic 

and stress induced phobias, I believe Ms. Williamson’s anxiety markedly disturbs 

her ability to function. * * *” 

 Finally, in a lengthy December 31, 1993 report, Dr. Blythe indicated: 

 “While the DSM-IIIR would say that PTSD [post-traumatic stress disorder] 

is caused by ‘extraordinary events,’ such as war or explosions that cause dozens of 

injuries, most psychiatrists now believe that PTSD does not require an 

‘extraordinary’ event, to be caused, but that a very frightening one, such as 

explosion or a rape, can cause it * * * especially when such an explosion also 

inflicts injury to the individual as a person * * * that is, affects the person’s sense 

of self and sense of self-determination. While Ms[.] Williamson did not suffer 

serious breaks of bones or burns, the emotional situation that occurred at Kroger 

was of the same sort that happens to people who are in serious accidents and who 

come close to dying. This patient had no previous psychiatric problems prior to 

the experience which I believe caused the PTSD. The patient now has many signs 

and symptoms which are similar to those of Viet Nam Veterans who are diagnosed 

as having PTSD * * *. 

 “* * * 

 “When the patient has had bad dreams, fears and flashbacks, she has tried at 

times in the past to avoid having them by ‘pretending everything is OK.’ She still 

is terrified of small spaces such as elevators * * *. Any report of similar instances 

on radio or TV exacerbates her fears of what almost happened to her and what did 

happen to her and again makes her fear for her family. 

 “The patient’s interest in her own life (and that of the family) was 

significantly diminished after the incident * * *. She couldn’t do things she 

enjoyed before. She felt cheated out of the way the life was ‘supposed’ to be lived 
 7

by how she was having to live it. * * * She couldn’t do normal things * * *. She 

felt estranged from other people because she ‘wasn’t being normal.’ She was quite 

hopeless about life for a period of time. This hopelessness was not (and now is 

not) her usual affect, but the depression still happens. The patient has some severe 

flashbacks, bad dreams, terror, and self-defeating behaviors * * * such as being 

unable to get out of the house to come to appointments. 

 “* * * 

 “The duration of her problem is over four years * * * though the definition 

of PTSD requires it to be more than one month * * * and it still persists though it 

is, unfortunately, no less serious now than it was when I met her in 1991, two 

years after the accident. It is not now accompanied by totally incapacitating 

depression. However, significant, and very unpredictable impairment has 

occurred since 1989, according to Dr[.] Lerner’s records, and definitely since I 

have known her * * * with a few hours being OK and then days or weeks of things 

being terrible and then things being OK again briefly for a few hours or a day. 

The patient never experiences long periods of being well * * * of not having 

symptoms of anxiety, panic, phobias and PTSD * * * and even the periods of 

‘better times’ are marred by an unpredictability that makes planning for the future 

difficult. The fact that this continues after four and half years makes my prognosis 

quite guarded. I would have expected that if she were going to be over her 

problems, she would be by now * * * and she isn’t. 

 “I have treated this patient for an anxiety disorder with panic attacks. The 

current DSM-IIIR breaks these symptoms into two diagnoses, that of Panic 

Disorder 300.01, and Generalized Anxiety Disorder 300.02. I also believe, and I 

have believed since I met her, that she has Post Traumatic Stress Disorder (PTSD) 

309.89. It is not at all uncommon for patients to have symptoms that cross specific 
 8

diagnostic categories, but all her symptoms fall into the anxiety/fearfulness 

category. She is significantly disabled from her psychological problems. That is, 

her problems are causing her significant disturbance in her personal relationships, 

her ability to work and her personal enjoyment of life. Based on what has 

happened in the past two and half years I have known her, I believe her condition 

will not improve and that she needs to be considered disabled. * * *” 

 A district hearing officer of appellee, Industrial Commission of Ohio, 

awarded temporary total disability compensation: 

 “* * * [F]rom 7/18/91 to 1/1/94. * * * 

 “It is the order of the Hearing Officer that further temporary total disability 

compensation is to be paid upon submission of medical evidence which 

documents the claimant’s continued inability to return to and perform the duties of 

her former position of employment as a result of the allowed conditions in this 

claim. 

 “The Hearing Officer finds that the claimant’s condition remains temporary. 

The claimant has not reached maximum medical improvement and the claimant’s 

condition has not become permanent. 

 “The Hearing Officer further finds that the claimant remains unable to 

return to and perform the duties of her former position of employment as a Deli 

Clerk as a result of this industrial injury. 

 “Temporary Total Disability Compensation is continued upon submission of 

medical proof documenting Claimant’s inability to return to her former place of 

employment. 

 “* * * 

 “This order is based upon the medical reports of Dr. Blythe, the evidence in 

the file and the evidence adduced at hearing.” 
 9

 The order was administratively affirmed. 

 Kroger filed a complaint in mandamus in the Court of Appeals for Franklin 

County, alleging that the commission abused its discretion in awarding claimant 

temporary total disability compensation. Finding Dr. Blythe’s medical reports to 

be “some evidence” in support of the commission’s determination, the court of 

appeals denied the writ. 

 This cause is now before this court upon an appeal as of right. 

__________________ 

Porter, Wright, Morris & Arthur, Karl J. Sutter and Charles J. Kurtz II, for 

appellant. 

Betty D. Montgomery, Attorney General, and William L. McDonald, 

Assistant Attorney General, for appellee. 

John L. Berg, for Wilma C. Williamson. 

__________________ 

Per Curiam. Kroger challenges the award of temporary total disability 

compensation from July 18, 1991 to January 1, 1994, and gives two reasons why it 

should be set aside. Neither has merit. 

 Kroger’s first argument asserts that claimant has reached 

permanency/maximum medical improvement (“MMI”), a finding of which bars 

temporary total disability compensation. R.C. 4123.56(A); State ex rel. Ramirez v. 

Indus. Comm. (1982), 69 Ohio St.2d 630, 23 O.O.3d 518, 433 N.E.2d 586; Vulcan 

Materials Co. v. Indus. Comm. (1986), 25 Ohio St.3d 31, 25 OBR 26, 494 N.E.2d 

1125. Kroger initially claims that the return-to-work dates on Dr. Blythe’s C-84’s 

are so “distant [and] unrealistic” as to compel a finding of MMI. 

 The commission’s broad evidentiary powers certainly permit it to discount a 

C-84 on the basis alleged by Kroger. In this case, however, the estimated return-
 10

to-work dates offered by Dr. Blythe were only eleven to twelve months distant. 

This is not unreasonable or unrealistic, nor is it uncommon. 

 Kroger also cites Dr. Blythe’s October 6, 1991 assessment of a “somewhat 

guarded prognosis” as evidence of MMI. While this is language that would 

support an MMI finding (see State ex rel. Cassity v. Montgomery Cty. Dept. of 

Sanitation [1990], 49 Ohio St.3d 47, 550 N.E.2d 474), it does not compel it. 

 “Somewhat guarded prognosis” can be interpreted two ways. As Cassity

shows, it can be read in favor of MMI. However, it can also suggest that 

improvement, while unlikely, has not been ruled out. In State ex rel. Copeland 

Corp. v. Indus. Comm. (1990), 53 Ohio St.3d 238, 559 N.E.2d 1310, we discussed 

a doctor’s report that could be construed as either supporting or negating MMI: 

 “In the case before us, Dr. Braunlin stated in his report of September 17, 

1986: 

 “ ‘I feel that he [claimant] has likely reached maximal recovery unless he 

attends a chronic pain and stress center which I feel might be quite helpful in 

dealing with the multitude of problems of which he still complains. * * * Unless 

additional improvement is made in a rehabilitation type program, I feel that he has 

likely reached maximal recovery.’ 

 “Dr. Braunlin’s comments are susceptible [of] differing interpretations. 

Given his suggestion that claimant may benefit from attendance at a chronic pain 

and stress clinic, we find that the commission’s interpretation of that report did not 

constitute an abuse of discretion. It is thus some evidence supporting the 

commission’s conclusion that claimant’s disability was not yet permanent.” Id. at 

239, 559 N.E.2d at 1311. 
 11

 The commission did not, therefore, abuse its discretion in refusing to 

interpret the October 6, 1991 report as evidence of maximum medical 

improvement. 

 Kroger also challenges what it perceives to be Dr. Blythe’s partial reliance 

on nonallowed conditions. Psychologically, the claim has been allowed for 

“anxiety disorder with panic attacks.” Dr. Blythe’s November 6, 1991 C-84, 

however, lists claimant’s present condition as “Post Traumatic Stress Disorder 

(Secondary to Industrial Accident), Panic Attacks, Dysthymia.” PTSD and 

dysthymia are also discussed in Dr. Blythe’s narratives, prompting Kroger’s 

objection. Upon review, this argument proves unpersuasive. 

 Compensable disability must arise exclusively from the claim’s allowed 

conditions. Fox v. Indus. Comm. (1955), 162 Ohio St. 569, 55 O.O. 472, 125 

N.E.2d 1. Ideally, the diagnosis contained on a disability form should mirror 

exactly the condition(s) allowed by the commission and, where it does not, closer 

examination may be warranted. Some degree of flexibility, however, seems 

particularly important when dealing with psychiatric conditions. As the 

Washington Supreme Court observed: 

 “Psychology and psychiatry are imprecise disciplines. Unlike the biological 

sciences, their methods of investigation are primarily subjective and most of their 

findings are not based on physically observable evidence.” Tyson v. Tyson (1986), 

107 Wash. 2d 72, 78, 727 P. 2d 226, 229. 

 The United States Supreme Court, in a criminal case, made a similar 

comment: 

 “Psychiatric diagnosis in contrast, is to a large extent based on medical 

‘impressions’ drawn from subjective analysis and filtered through the experience 

of the diagnostician. This process often makes it very difficult for the expert 
 12

physician to offer definite conclusions about any particular patient.” Addington v. 

Texas (1979), 441 U.S. 418, 430, 99 S.Ct. 1804, 1811, 60 L.Ed.2d 323, 333. 

 The reference to the nature of psychological diagnoses does not imply that 

these diagnoses are freely interchangeable. Clearly, major depression and 

paranoia are not the same and, in this case, all three disorders, PTSD, dysthymia, 

and anxiety disorder with panic attacks, are distinct. Nevertheless, we find that 

the multiple psychological diagnoses are not fatal to claimant’s compensation 

application. There are three reasons for this. 

 First, regardless of the label attached, Dr. Blythe consistently referred to the 

same symptoms as being the cause of disability. Second, many of the symptoms 

are common to all three maladies. This largely explains why Dr. Blythe has had 

difficulty categorizing the disorder. Finally, Dr. Blythe has always related the 

relevant symptomatology to the industrial accident. 

 Cumulatively, this indicates that the debilitating symptoms are industrially 

related. This is not a situation in which diagnostic flexibility will allow a 

physician to surreptitiously treat a claimant for a nonindustrial ailment. The 

problem seems to rest solely on Dr. Blythe’s understandable inability to affix a 

single diagnosis to symptoms that fit several categories. For these reasons, the 

commission’s reliance on Dr. Blythe’s reports is not an abuse of discretion, and 

the award of temporary total disability compensation from July 18, 1991 to 

January 1, 1994 is upheld. 

 Kroger lastly contends that the commission abused its discretion in 

extending temporary total disability compensation beyond December 31, 1993, 

given Dr. Blythe’s declaration of MMI of that same date. The commission 

responds that it did not award temporary total disability compensation beyond that 

date, rendering Kroger’s argument premature. The commission is factually 
 13

correct. What Kroger is really arguing is that the commission erred in failing to 

declare claimant had reached MMI as of December 31, 1993. Kroger, however, 

did not raise this argument below. It cannot, therefore, be raised at this time. 

 The judgment of the court of appeals is affirmed. 

Judgment affirmed. 

 MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and

LUNDBERG STRATTON,JJ., concur.