State ex rel. Baker v. Indus. Comm.

[This decision has been published in Ohio Official Reports at 

.]




THE STATE EX REL. BAKER, APPELLANT, v. INDUSTRIAL COMMISSION OF OHIO,
                                        APPELLEE.
         [Cite as State ex rel. Baker v. Indus. Comm., 

.]
Workers’ compensation—Mandamus sought to compel Industrial Commission to
        grant an earlier start date for relator-claimant’s permanent total
        disability compensation—Court of appeals’ denial of writ affirmed—
        Compensation for disability existing more than two years prior to
        application prohibited by R.C. 4123.52.
 (No. 2001-2248—Submitted September 17, 2002—Decided December 4, 2002.)
      APPEAL from the Court of Appeals for Franklin County, No. 01AP-447.
                                  __________________
        Per Curiam.
        {¶1} Appellant-claimant, Ernest F. Baker, was hurt on the job in 1993. His
application for workers’ compensation benefits was initially denied by appellee,
Industrial Commission of Ohio, which concluded that claimant was not an
employee, but rather an independent contractor, and therefore exempt from these
benefits. This finding precipitated a six-year administrative and legal battle in
which claimant’s employment status and the specification of medical conditions
related to his accident were hotly debated. Litigation ended on November 2, 1999,
when appellee’s staff hearing officer denied the employer’s appeal of the district
hearing officer’s allowance of a workers’ compensation claim.
        {¶2} On January 18, 2000, claimant moved for permanent total disability
compensation (“PTD”). He submitted the July 28, 1999 report of Dr. Stephen Altic,
who stated:
        {¶3} “It is also my opinion that this patient was totally disabled between
the date of injury September 26, 1993 through September 26, 1994. Based upon
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my examination, medical records provided, and the patient’s history it is also my
opinion that Mr. Baker is permanently and totally impaired from performing any
gainful remunerative employment since September 26, 1994 directly as a result
of these injuries as described.”
          {¶4} The commission granted claimant’s application and commenced PTD
as of July 28, 1999, the date of Dr. Altic’s report. Seeking an earlier start date,
claimant sought a writ of mandamus from the Court of Appeals for Franklin
County. Finding some evidence to support the commission’s decision, the court
denied the writ. This cause is now before this court upon an appeal as of right.
          {¶5} It is uncontroverted that some evidence supports the July 28, 1999
PTD start date chosen by the commission—Dr. Altic’s report of the same date. The
claimant nevertheless advocates a start date of September 27, 1994, based on
Altic’s statement—in the July 28, 1999 report—that claimant had been
permanently and totally disabled since September 26, 1994. We reject claimant’s
position for two reasons.
          {¶6} First, the commission alone determines the weight and credibility of
the evidence before it. State ex rel. Burley v. Coil Packing, Inc. (1987), 

, 31 OBR 70, 

. Here, the commission rejected Dr.
Altic’s proffered 1994 date because there was no evidence that Dr. Altic had seen
or treated claimant in 1994. To the contrary, claimant’s own PTD application states
that Dr. Altic first saw claimant in December 1999. Moreover, Altic’s selection of
a September 27, 1994 start date coincides more with the termination date of
temporary total disability compensation than it does with anything of a medical
nature.
          {¶7} Second, claimant’s proposed date conflicts with R.C. 4123.52’s statute
of limitations, which forbids compensation for disability existing more than two
years prior to application therefor. Claimant filed for PTD on January 18, 2000.
Consequently, compensation before January 18, 1998, is unauthorized.




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                                  January Term, 2002




       {¶8} Claimant contends that the six years that it took to get the claim
allowed and the conditions therein finalized justify the abandonment of the
evidentiary and statutory impediments to his proposal. This assertion lacks merit.
First, there is no authority for the proposition that application of the statutory
conditions for PTD is subject to some sort of time line. Second, any attempt to
equate this case to those in which application of a pertinent rule or regulation was
excused because of administrative delay fails. Unlike the delay in State ex rel.
Johnston v. Ohio Bur. of Workers’ Comp. (2001), 

, 

, for example, this delay is not attributable to the commission’s lack of diligence
in processing an application. The six years between application and allowance were
attributable to protracted litigation.    There is, therefore, no justification for
abandoning the controlling law in this case.
       {¶9} 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.
                               __________________
       Reinhard, Zamora & Bates Co., L.P.A., and Charles Zamora, for appellant.
       Betty D. Montgomery, Attorney General, and Daniel M. Hall, Assistant
Attorney General, for appellee.
                               __________________




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