OPINIONS OF THE SUPREME COURT OF OHIO

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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.
