[Cite as State ex rel. Coxson v. Dairy Mart Stores of Ohio, Inc., 90 Ohio St.3d
428, 2000-Ohio-188.]




THE STATE EX REL. COXSON ET AL., APPELLEES, v. DAIRY MART STORES OF OHIO,
                                 INC., APPELLANT.
 [Cite as State ex rel. Coxson v. Dairy Mart Stores of Ohio, Inc. (2000), 90 Ohio
                                    St.3d 428.]
Workers’ compensation — Termination of temporary total disability benefits —
        Court of appeals’ grant of writ of mandamus ordering Industrial
        Commission to vacate its order refusing to reinstate temporary total
        disability benefits to claimant and order to commission for further
        consideration and a new order affirmed.
  (No. 99-532 — Submitted August 22, 2000 — Decided December 27, 2000.)
  APPEAL from the Court of Appeals for Franklin County, No. 97APD11-1473.
        In 1992, appellee-claimant, Marlyne Coxson, was an assistant manager for
appellant Dairy Mart Stores of Ohio, Inc. (“DM”). On September 26, 1992, she
was seriously hurt in a work-related motor vehicle accident. DM, a self-insured
employer, began paying temporary total disability compensation (“TTC”)
thereafter.
        On October 12, 1993, claimant’s attending physician, Dr. John F. Steele,
certified her as temporarily totally disabled through early the next year. On
December 7, 1993, DM’s counsel deposed Dr. Steele. During the deposition, this
exchange occurred:
        “Q. [DM counsel]: And you’ve always responded that she was 100 percent
totally disabled from her former position of employment. Are you now * * *
retracting that statement to a degree?
        “A [Doctor]: No, but if they would change her type of employment like a
light-duty type thing, she could perform that. But for her regular job, she was 100
percent temporarily disabled.”
       Dr. Steele authorized claimant’s return to light-duty work, on the
condition that she not be required to perform repetitive bending, stooping, or
kneeling, or to lift over twenty-five pounds. He defined “repetitive” as “more
than once every ten or so minutes.”
       On December 15, 1993, DM sent this letter to claimant:
       “GOOD NEWS! Your physician-of-record, Dr. John Steele has released
you to return to work on a light-duty basis.
       “Your restrictions are:
       “1. no lifting over 25 lbs.
       “2. no repetitive bending, stooping, or kneeling (‘repetitive’ is considered
seven to eight times in an instance).
       “3. Please call Ward Miller, your Human Resources Director, on or
before, noon on Monday, December 27, 1993. He will assign you to a store. * *
*”
       A second letter was sent on January 11, 1994, that read:
       “After being informed of your release to return to work on a light-duty
basis, I have spoken with [your] Supervisor, Cindy Dunn, to locate a store to
accommodate your return.
       “Ms. Dunn has informed me that we have an opening at [a] store [in
Hubbard, Ohio]. Please contact Ms. Dunn no later than Friday, January 14, 1994
to confirm your return to work at that location and to establish your work
schedule. Ms. Dunn can be reached * * * at [phone number]. If she is not
available when you call that store, please leave her a message with your phone
number and she will contact you directly.
       “Please contact me [Ward Miller] if you have any questions or if you have
not been able to reach Ms. Dunn by January 14, 1994.”




                                         2
       The evidence conflicts as to whether claimant attempted to contact DM.
In any event, on January 24, 1994, DM stopped paying TTC based on claimant’s
failure to report to her new position.
       On May 3, 1994, for reasons unknown, DM sent a one-line letter to
claimant, which stated:
       “Attached is a copy of the physical job demands for sales assistants and
assistant managers under the Dairy Mart Rehabilitation program.”
       Attached was a sheet entitled “PHYSICAL JOB DEMANDS FOR SALES
ASSISTANTS REHABILITATION.” It consisted of a list of job requirements,
including:
       “2. Required to lift boxes in the stockroom and to transfer them to the
sales floor. The height would vary from ankle to shoulder level. * * *
       “3. Occasional bending, kneeling preferred.
       “4. Occasionally required to climb and stand on a ladder and safety
stepstool to fix or replace window signs, to stock shelves, and to perform simple
maintenance chores.
       “5.    Required to bend over to check in merchandise arriving from
warehouse. Deliveries vary from once a week to once every two weeks.
       “6. Perform various cleaning and scrubbing assignments.
       “***
       “8. Occasionally required to carry out trash and place in an outdoor
dumpster. Maximum weight: no more than ten pounds.
       “9. Required to sweep and mop the sales floor, required to lift, in addition
to sweeping the parking lot, during appropriate weather.
       “***
       “12. [R]equired to wash windows and shine surfaces.
       “13.    DAIRY MART WILL WORK WITH THE PHYSICIAN TO
MODIFY JOBS WITHIN GIVEN RESTRICTIONS OR LIMITATIONS.”




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       Claiming an inability to perform the duties offered, claimant petitioned the
commission for an order reinstating TTC.         She submitted C-84 physician’s
supplemental reports that ultimately certified her as temporarily totally disabled
through July 25, 1995.
       A district hearing officer (“DHO”) for appellee Industrial Commission of
Ohio denied compensation, writing:
       “[C]laimant’s request for temporary total compensation from 1/28/94
through 4/17/95, inclusive, is denied as this request for payment of temporary
total compensation was not submitted to the claim file within two years.
       “***
       “Temporary total compensation from 4/18/95 through 6/13/97, inclusive,
is denied. The District Hearing Officer finds and orders that claimant has failed
to submit any medical evidence to substantiate this requested period of disability.
       “The District Hearing Officer notes that the latest C-84 report of Dr.
Steele dated 8/11/94 estimated a return to work date of 11/30/94, and there are no
subsequent C-84 reports contained within the State Claim file.
       “Furthermore, the District Hearing Officer finds and orders that the self-
insured employer made a legitimate good faith job offer to claimant on two
occasions by certified letters dated 12/15/93 and 1/11/94. The District Hearing
Officer further finds that claimant acknowledged receipt of the letters at hearing
and understood the content of the letters.
       “The District Hearing Officer notes that claimant disputed the existence of
[a] light duty job at Dairy Mart based upon her experience there. However, the
District Hearing Officer finds that no written evidence was presented to dispute
the fact that this claimant was given a light duty job offer within her physical
capabilities on or about 12/15/93 and 1/11/94. Accordingly, the District Hearing
Officer finds that claimant failed to accept the legitimate light duty job offer and




                                         4
temporary total compensation is denied for the requested period for the reasons
set forth above.”
        A staff hearing officer modified the DHO’s order, finding:
        “Claimant did request payment of temporary total compensation [from]
1/28/94 through 4/17/95, in a timely manner. Therefore, the Staff Hearing Officer
concludes that the Industrial Commission of Ohio does have jurisdiction to
consider authorization for payment of temporary total compensation for the
above-stated period.
        “The Staff Hearing Officer denies temporary total compensation from
1/28/94 through 4/17/95, for the reason that claimant refused a legitimate light
duty offer of employment, on or about 12/15/93, then refused another offer on
1/11/94 and again on 5/3/94.
        “In making this finding, the Staff Hearing Officer has relied upon
claimant’s testimony at this hearing, which establishes that claimant refused said
offers as she ‘thought there was no light duty work available’ with this employer.
        “This was also reflected in claimant’s testimony as contained in the
transcription of testimony from the District Hearing Officer hearing of 8/22/97.
        “Finally, the Staff Hearing Officer relies upon Dr. Steele’s testimony
contained in his 12/7/93 Deposition, indicating claimant was capable of light duty
work.
        “Lastly, the employer’s letters of 12/15/93, 1/11/94 and 5/3/94, offering
claimant light duty work, were relied upon.
        “Dr. Steele’s other C-84 reports were reviewed but not found persuasive,
in light of his opinion as contained in said Deposition.
        “The prior order is affirmed in all other respects.”
        Further hearing was denied.
        Claimant filed a complaint in mandamus in the Court of Appeals for
Franklin County, alleging that the commission abused its discretion in refusing to




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reinstate TTC. The court of appeals granted the writ and ordered the commission
to vacate its order. It reasoned that the commission order did not address what the
court perceived to be DM’s misstatement of Dr. Steele’s restrictions, and thus
ordered further consideration and a new order.
       This cause is now before this court upon an appeal as of right.
                              __________________
       Podor & Associates, Kenneth C. Podor and Daniel J. Gibbons, for
appellee Coxson.
       Buckingham, Doolittle & Burroughs, Richard A. Hernandez, Timothy C.
Campbell and Lori A. Fricke, for appellant.
                              __________________
       Per Curiam. R.C. 4123.56(A) identifies four circumstances under which
TTC can be terminated:
       “In the case of a self-insuring employer, payments shall be for a duration
based upon the medical reports of the attending physician.        If the employer
disputes the attending physician’s report, payments may be terminated only upon
application and hearing by a district hearing officer * * *.       Payments shall
continue pending the determination of the matter, however payment shall not be
made for the period [1] when any employee has returned to work, [2] when an
employee’s treating physician has made a written statement that the employee is
capable of returning to the employee’s former position of employment, [3] when
work within the physical capabilities of the employee is made available by the
employer or another employer, or [4] when the employee has reached the
maximum medical improvement.”
       For reasons unknown, the parties concentrate on the second criterion,
including a vigorous debate over whether a release that is not in writing can
satisfy the statute. The parties proceed, unquestionably, under the premise that
claimant was released to her former position of employment. This is not the case.




                                        6
Dr. Steele never released claimant to return to her former job. He said she could
do light-duty work, and DM, in turn, offered claimant a job purportedly within
those restrictions. Claimant’s compensation was, therefore, stopped pursuant to
the third criterion, not the second, rendering much of the litigants’ discussion
misplaced. The statute requires a written release only when the release is to the
former position of employment.
       Eventually, the parties refocus their arguments on Dr. Steele’s restrictions
and whether the commission properly considered them in denying TTC from
January 24 through July 24, 1995. Two reasons were stated for denial: (1)
claimant’s rejection of DM’s job offer, and (2) lack of persuasive evidence of
temporary total disability. The commission’s analysis of both is flawed.
       In determining that DM’s job was within claimant’s medical capabilities,
the DHO relied exclusively on DM’s December 15, 1993 and January 14, 1994
letters. This is problematic for two reasons. First, since these letters do not
identify the position offered or describe its duties, it is questionable whether they
can be considered offers of suitable employment.
       Second, and even more important, the December letter, in acknowledging
Dr. Steele’s prohibition against repetitive bending, stooping and kneeling, defined
“repetitive’ as seven to eight times in an “instance” – an obviously subjective and
highly ambiguous time frame. Thus, what DM considered to be non-repetitive
could easily exceed Dr. Steele’s limitation of six times per hour.
       The problem continues into the May 3, 1994 letter and job description. Its
reference to “occasional” bending and kneeling is, again, too vague, and leaves
the door open to duties that exceed Dr. Steele’s restrictions.
       DM defends its offer by stressing that any deficiency is cured by the May
3, 1994 promise to “work with the physician to modify jobs within given
restrictions or limitations.” The difficulty with accepting this argument is that it
essentially legitimizes any job offer – no matter how inappropriate – under the




                                          7
guide of later modification. As noted previously, if a job offer is to be sufficient
to stop TTC, it must be clear that the job is indeed within claimant’s restrictions.
       The court of appeals sought clarity in returning the cause to the
commission for further consideration, and we agree with this ruling. Neither the
DHO (who ignored the May 3, 1994 job description) nor the staff hearing officer
(who mentioned it only in passing) addressed the two key questions posed by the
job description: (1) What is DM’s definition of “occasional” bending and
kneeling? and (2) Does that definition comport with Dr. Steele’s restrictions? As
the court of appeals found, there are serious unanswered questions here.
       The second flaw in the commission’s order is in its rejection of Steele’s C-
84s as unpersuasive. The commission based this conclusion on Dr. Steele’s
deposition testimony, presumably believing that he had repudiated his earlier C-
84 declaration of an inability to return to the former position of employment. Dr.
Steele, however, never testified that claimant could return to her former job. He
said only that claimant could return to modified light duty, and actually
reaffirmed that claimant could not resume her previous duties.
       Accordingly, the judgment of the court of appeals is affirmed.
                                                                 Judgment affirmed.
       DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER and LUNDBERG STRATTON,
JJ., concur.
       MOYER, C.J., and COOK, J., concur in part and dissent in part.
                               __________________
       COOK, J., concurring in part and dissenting in part. I agree with the
majority’s affirmance of the appellate court’s decision, but with one modification.
The commission’s denial of TTC for the period beyond July 24, 1995, ought not
be reconsidered. The commission denied TTC for that period not for lack of
persuasive evidence, but for lack of any evidence of temporary total disability.
That denial should remain intact, since Dr. Steele did not certify temporary total




                                          8
disability beyond July 24, 1995. Accordingly, I would return this cause to the
commission for reconsideration of the period of January 24, 1994 to July 24,
1995, only.
       MOYER, C.J., concurs in the foregoing opinion.




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