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The State ex rel. Crabtree v. Bureau of Workers' Compensation. 

[Cite as State ex rel. Crabtree v. Ohio Bur. of Workers' Comp. 

(1994), ** * Ohio St.3d ***.] 

 (No. 94-1319 -- Submitted November 30, 1994 -- Decided 

December 30, 1994.) 

 In Mandamus and Prohibition. 

 Relator-claimant Roger D. Crabtree was industrially 

injured on November 8, 1993 while working for Sauer 

Construction, Inc., a State Fund employer. After his claim was 

allowed, Crabtree began receiving temporary total disability 

("TTD") compensation based on reports from his chiropractor, 

Dr. Stephen Kincaid. 

 On April 7, 1994, Crabtree was examined by a Bureau of 

Workers' Compensation ("bureau") physician, Dr. Bernard Nolan. 

Nolan opined that Crabtree's allowed conditions prevented a 

return to his former position of employment. On May 6, 1994, 

the bureau's Rehabilitation Division informed Crabtree that his 

rehabilitation file was being closed because "your Physician of 

Record does not feel you are stable enough for rehabilitation 

with a goal of returning to work." In a May 17, 1994 

supplement, Dr. Nolan wrote: 

 "I have reviewed this man's file and, based on his failure 

to participate in the recommended rehabilitation, it is my 

opinion that he has, at this time, reached maximum medical 

improvement." 

 Dr. Nolan's conclusion that Crabtree had maximally 

medically improved caused the bureau to terminate Crabtree's 

TTD compensation, pursuant to a new policy adopted by the 

bureau in the wake of the 1993 passage of Am. Sub. H.B. No. 

107, a package of reforms of Ohio's workers' compensation 

system. The bureau's "Due Process Policy and Guidelines," 

implemented after the effective date of Am. Sub. H.B. No.107, 

provides: 

 "IV. DISABILITY DETERMINATION NOTICES 
 "POLICY: Written notice will be provided to the parties of 

the claim when medical evidence is received (from other than 

the POR [Physician of Record]) indicating maximum medical 

improvement [MMI] may have been reached. The notice will: 

 "--indicate possible termination of benefits due to MMI, 

 "--provide a copy of the medical evidence indicating MMI, 

 "--define maximum medical improvement, 

 "--provide an opportunity to submit additional information, 

 "--outline other benefits to which the IW [injured worker] 

may be entitled. 

 "V. RESPONSES TO THE DISABILITY DETERMINATION NOTICE: 

 "POLICY: The injured worker and the employer are allowed 

21 days from the date of the Disability Determination Notice to 

submit relevant evidence regarding the proposal to terminate 

compensation benefits. Any evidence received must be evaluated 

on its merits even if the evidence is received during the 

appeal period. Corrected decisions can be issued during the 

Appeal period. BWC does not have continuing jurisdiction after 

the Appeal period and can only issue amended orders if there is 

a fraud, a clear clerical error or if there are new and changed 

circumstances in the claim which could not have been known 

previously. 

 "VI. FINAL DECISIONS (ORDERS) 

 "POLICY: The final BWC decision is always based upon the 

weight of the medical evidence on file. Orders are issued 

after the parties to the claim have been provided an 

opportunity to submit relevant evidence. The Order must always 

indicate the medical evidence/documentation which was relied 

upon in reaching the final decision. * * * 

 "VII. TERMINATING TEMPORARY TOTAL BENEFITS: 

 "POLICY: Temporary Total benefits are terminated 

effective the date of the Order. Overpayments which arise from 

internal delays should not be created." 

 Pursuant to that policy, the bureau wrote to Crabtree: 

 "BWC has received the enclosed medical report as a result 

of your recent medical examination which indicates that your 

condition has reached maximum medical improvement. * * * Under 

Ohio Workers' Compensation law (ORC Section 4123.56), this 

reason supports terminating your temporary total compensation. 

 "A copy of this letter and the specialist medical report 

has been sent to all parties, and to your physician of record. 

You and your physician may wish to submit additional medical 

evidence on this issue for consideration in our final 

decision. Any additional evidence must be received within 21 

calendar days from the date of this letter. * * * This letter 

is your notice that BWC will evaluate your claim and in 21 

calendar days issue an order that may terminate your temporary 

total compensation. * * *" (Emphasis sic.) 

 Crabtree responded with a letter from Dr. Kincaid that 

indicated: 

 "Based solely on the allowed back injury to the patient, I 

do not feel he has reached maximum medical improvement. He 

continues to make slow, but steady progress. I feel he remains 

temporary [sic] totally disabled for gainful employment. 

 "I believe there will be improvement with Chiropractic 

treatments and/or surgery, if that becomes necessary. At this 
point, I feel that Chiropractic treatments can provide 

improvement without surgery * * * ." 

 The bureau terminated Crabtree's TTD compensation without 

oral hearing. Crabtree has commenced an original action in 

mandamus and prohibition seeking to: (1) prohibit the bureau 

from continuing its termination policy, and (2) compel the 

reinstatement of his TTD benefits until a district hearing 

officer conducts a hearing and rules on the maximum medical 

improvement issue. 

 

 Stewart Jaffy & Associates Co., L.P.A., Stewart R. Jaffy 

and Marc J. Jaffy, for relator. 

 Lee I. Fisher, Attorney General, and Dennis L. Hufstader, 

Assistant Attorney General, for respondent. 

 Gallon & Takacs Co., L.P.A., and Theodore A. Bowman urging 

granting of the writ for amicus curiae, Ohio Academy of Trial 

Lawyers. 

 

 Pfeifer, J. Relator argues that the bureau policy at 

issue lacks statutory authority and is unconstitutional. 

Relator presents a compelling argument that the bureau's policy 

violates the Due Process Clause, Section 16, Article I, and the 

Equal Protection Clause, Section 2, Article I, of the Ohio 

Constitution because it denies State Fund claimants the oral 

pre-termination hearing before a district hearing officer that 

employees of self-insured employers receive. However, when a 

case can be decided on other than a constitutional basis, we 

are bound to do so. State ex rel. Hofstetter v. Kronk (1969), 

20 Ohio St. 2d 117, 49 O.O.2d 440, 254 N.E.2d 15. We decide 

this case based upon statutory interpretation. The bureau's 

"Due Process Policy and Guidelines" is not statutorily 

supported, and we thus grant relator's requested writs. 

 R.C. 4121.39 sets forth the powers and duties of the 

bureau: 

 "The administrator of workers' compensation shall do all 

of the following: 

 "(A) Review and process all applications for claims; 

 "(B) Award compensation and make payment on all 

noncontested claims; 

 "(C) Make payment on orders of the industrial commission 

and district and staff hearing officers as provided in section 

4123.511 of the Revised Code * * * ." 

 The limited power R.C. 4121.39 accords the bureau is 

consistently reflected in the remainder of the statutory 

framework of Ohio's workers' compensation system. The bureau's 

role is ministerial, not deliberative. The bureau gives way to 

the commission when a party contests an award, necessitating a 

weighing of evidence and a judgment. The bureau then makes the 

payments based upon the commission's judgments. 

 The bureau's duty under R.C. 4121.39(C) to "[m]ake payment 

on orders of the industrial commission and district and staff 

hearing officers" is consistent with the bureau's other 

ministerial functions. That statute gives the bureau the 

authority to terminate TTD compensation only in uncontested 

situations. See R.C. 4121.39(B). 

 The commission order, pursuant to R.C. 4121.39(C), 
dictates the terms of TTD compensation. Where TTD compensation 

hinges on the satisfaction of certain conditions, it follows 

that the right to compensation ceases when those conditions are 

no longer met. If, for example, the order makes further TTD 

compensation contingent on proof of disability and no proof is 

forthcoming, the bureau cannot continue TTD compensation. This 

effectively constitutes a termination and is consistent with 

the limited authority of self-insured employers to terminate 

compensation under State ex rel. Jeep Corp. v. Indus. Comm. 

(1991), 62 Ohio St.3d 64, 577 N.E.2d 1095. 

 On the other hand, the bureau must pay TTD compensation if 

all conditions precedent are met. Thus, if the commission 

order makes payment contingent on proof of disability and the 

claimant tenders such evidence, the bureau must continue 

compensation regardless of the existence of contrary evidence. 

Conflicting evidence turns an established entitlement to TTD 

compensation into a dispute over TTD compensation, and it is at 

that point that the bureau's termination authority ends. 

 The present case involves a contested claim for TTD 

compensation. The bureau argues that R.C. 4123.511, read in 

pari materia with R.C. 4121.34, 4121.39, 4123.52 and 4123.56, 

demonstrates the bureau's power to terminate contested claims. 

However, our reading of those statutes yields a completely 

different conclusion. Most important, R.C. 4123.511 deals with 

the initial claims process, including the receipt and 

investigation of a new claim for compensation or benefits. R.C. 

4123.511(A). R.C. 4123.511(B) grants the bureau the authority 

to allow or deny claims at that level, but the bureau's 

affirmative authority is limited to compensation requests that 

are made contemporaneously with a claimant's initial 

application to have his claim allowed. R.C. 4123.511 does not 

give the bureau jurisdiction to terminate ongoing TTD 

compensation if an eligibility dispute exists. Instead, 

disputed compensation issues must be heard by commission 

hearing officers. 

 R.C. 4121.34, 4121.39, 4123.52 and 4123.56 are consistent 

with that reading of the statute. R.C. 4121.34(B)(3) gives 

district hearing officers original jurisdiction over all 

contested matters arising under R.C. Chapter 4123. 

 The bureau correctly notes that R.C. 4121.39(A) directs 

the bureau to "[r]eview and process all applications for 

claims." "Review and process," however, does not equate to 

"affirmatively adjudicate" all applications for claims. To so 

hold would empower the bureau to adjudicate every workers' 

compensation issue raised, leaving the commission without 

purpose. 

 While R.C. 4123.52 bestows continuing jurisdiction on the 

commission and, since Am. Sub. H.B. No. 107, the bureau 

administrator, the commission's jurisdiction is of a much 

different character: 

 "The jurisdiction of the industrial commission and the 

authority of the administrator of workers' compensation over 

each case is continuing, and the commission may make such 

modification or change with respect to former findings or 

orders with respect thereto, as in its opinion is justified." 

(Emphasis added.) R.C. 4123.52. 
 While granting continuing jurisdiction to the bureau, at 

least in name, the General Assembly authorized only the 

commission to modify former findings or orders. 

 Finally, R.C. 4123.56(A)'s first paragraph, which deals 

with the substantive aspects of terminating TTD compensation, 

contains no reference to intervention or participation by the 

bureau. The bureau points to the language in the statute which 

states that "payment shall not be made * * * when the employee 

has reached the maximum medical improvement" to support its 

claim that it has authority to terminate TTD compensation. 

However, R.C. 4123.56 requires that contested TTD claims go to 

commission hearing and requires that compensation shall 

continue to be made while determination is pending, with four 

exceptions. R.C. 4123.56(A) reads, in relevant part: 

 "If the employer disputes the attending physician's 

report, payments may be terminated only upon application and 

hearing by a district hearing officer pursuant to division (C) 

of section 4123.511 of the Revised Code. Payments shall 

continue pending the determination of the matter, however 

payment shall not be made for the period when any employee has 

returned to work, when an employee's treating physician has 

made a written statement that the employee is capable of 

returning to his former position of employment, when work 

within the physical capabilities of the employee is made 

available by the employer or another employer, or when the 

employee has reached the maximum medical improvement." 

 The bureau may unilaterally terminate compensation under 

these four exceptions to continued payment only when there is, 

in essence, no remaining dispute, and no facts at issue. In 

the first instance, a person returns to work and the necessity 

of compensation is over. The second exception occurs when the 

claimant's own treating doctor states that he is able to return 

to work. The third exception occurs when the employer or 

another employer gives the employee work within his physical 

capabilities. Since the phrase "work within the physical 

capabilities of the employee is made available" is used in a 

conclusory manner, as if that issue has already been decided, 

the bureau may unilaterally terminate compensation under this 

exception only in cases where the issue is effectively decided, 

i.e., where the employee offers no conflicting evidence about 

whether he is physically able to perform the work offered. 

Likewise, the fourth exception, the one relevant to this case, 

comes into play "when the employee has reached the maximum 

medical improvement." It cannot be judged with the certainty 

implicit in the statute that the employee has reached that 

threshold until after the hearing officer has made his 

determination on that issue. Thus, the bureau may unilaterally 

terminate compensation under this exception only when there is 

no dispute as to whether the employee has reached maximum 

medical improvement. 

 Pursuant to the bureau's theory, R.C. 4123.56 would 

require the bureau to terminate TTD compensation any time that 

an employer submits evidence, no matter how flimsy, that 

challenged the existence of TTD. It is of little consolation 

to a claimant to have benefits belatedly reinstated should 

claimant's evidence subsequently prevail. Thus, the statute 
can only mean that the bureau can terminate payments prior to a 

district hearing officer's determination only upon the 

uncontested existence of one of the four uncontested, 

disqualifying conditions. 

 "In order to obtain a writ of prohibition, relator must 

prove: (1) that the court or officer against whom the writ is 

sought is about to exercise judicial or quasi-judicial power, 

(2) that the exercise of that power is unauthorized by law, and 

(3) that denying a writ will result in injury for which no 

other adequate remedy exists in the ordinary course of law." 

State ex rel. Keenan v. Calabrese (1994), 69 Ohio St.3d 176, 

178, 631 N.E.2d 119, 121. Crabtree seeks to discontinue the 

bureau's termination policy on behalf of himself and all other 

claimants. Since the bureau is exercising a power for which it 

does not have statutory authority, and since the normal appeals 

process is inadequate, the relator has satisfied the 

requirements for a writ of prohibition, and we therefore grant 

the requested relief. 

 Crabtree also requests a writ of mandamus to compel 

reinstatement of his TTD compensation pending adjudication of 

the issue of maximum medical improvement by a commission 

district hearing officer. In order to be entitled to a writ of 

mandamus, the relator must establish that he has a clear legal 

right to the relief prayed for, that respondent has a clear 

legal duty to perform the requested act, and that the relator 

has no plain and adequate remedy at law. State ex rel. Seikbert 

v. Wilkinson (1994), 69 Ohio St.3d 489, 633 N.E.2d 1128. Since 

we have already determined that the bureau has a clear legal 

duty to reinstate Crabtree's TTD compensation until a district 

hearing officer has determined the maximum medical improvement 

issue, and that the appeals process is inadequate, we hereby 

grant the writ. 

 Writs granted. 

 A.W. Sweeney, Resnick and F.E. Sweeney, JJ., concur. 

 Douglas, J., concurs separately. 

 Moyer, C.J., and Wright, J., dissent. 

 Douglas, J., concurring. I concur in the well-reasoned 

opinion of Justice Pfeifer. I write separately to make one 

additional point. 

 R.C. 4121.31, in part, provides: 

 "The administrator of workers' compensation and the 

industrial commission jointly shall adopt rules covering the 

following general topics with respect to this chapter [4121] 

and Chapter 4123. of the Revised Code: 

 "* * * 

 "(C) All claims, whether of a state fund or self-insuring 

employer, be processed in an orderly, uniform, and timely 

fashion." (Emphasis added.) 

 Clearly, the respondent bureau (pursuant to its 

promulgated "policy") is not handling TTD disputes in a 

"uniform" fashion as required by the statute. This is so 

because state fund claimants are affected by the "policy" but 

employee-claimants of a self-insured employer are not. Really, 

given R.C. 4121.31, nothing more needs to be said. 

 Wright, J., dissenting. I would deny both the writ of 

mandamus and the writ of prohibition, because I believe that 
relator has adequate remedies at law. 

 With regard to relator's request for a writ of mandamus, 

relator exercised his right to appeal the bureau's decision 

within fourteen days to the Industrial Commission. If relator 

had obtained a favorable result upon appeal, his temporary 

total disability compensation would have been reinstated. 

However, the relator's administrative appeal is either being 

held in abeyance or has been dropped. A writ of mandamus is 

completely inappropriate given these circumstances. 

 With regard to relator's request for a writ of 

prohibition, relator has the right to challenge the bureau's 

policy concerning the termination of temporary total disability 

compensation by filing a declaratory judgment action in an 

appropriate court. Instead of following these adequate legal 

avenues, relator inappropriately requests this court to grant a 

writ of prohibition. 

 Accordingly, I respectfully dissent. 

 Moyer, C.J., concurs in the foregoing dissenting opinion.