[Cite as State ex rel. Kestler v. Wellness Ctr. Health Assoc., L.L.C., 122 Ohio St.3d 131, 2009-
Ohio-2624.]




   THE STATE EX REL. KESTLER, APPELLANT, v. WELLNESS CENTER HEALTH
                       ASSOCIATES, L.L.C. ET AL., APPELLEES.
       [Cite as State ex rel. Kestler v. Wellness Ctr. Health Assoc., L.L.C.,
                        122 Ohio St.3d 131, 2009-Ohio-2624.]
Workers’ compensation — Temporary total disability compensation —
        Commission’s reliance on report with two inconsistent conclusions is
        error when commission does not clarify which of two conclusions it
        adopted to deny compensation — Cause returned to commission for
        further consideration and clarification.
      (No. 2008-0211 — Submitted April 4, 2009 — Decided June 11, 2009.)
               APPEAL from the Court of Appeals for Franklin County,
                             No. 07AP-56, 2007-Ohio-7012.
                                  __________________
        Per Curiam.
        {¶ 1} Appellant, Kristen M. Kestler, injured her back while working as a
physical therapist for Dr. Brian Nobbs and was paid temporary total disability
compensation from October 7, 2004, through October 1, 2005. She returned to
her job on October 3, 2005, but worked for only a few days before her allowed
conditions allegedly prevented her from continuing. Her request for temporary
total disability compensation for that period is now at issue.
        {¶ 2} Dr. Nobbs certified that due to her allowed conditions, Kestler had
been unable to return to her former position of employment from October 11,
2005 through an estimated return date of February 28, 2006. But a November 3,
2005 office note from Dr. Earl Scheidler suggested a different reason why Kestler
was not working:
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          {¶ 3} “I have encouraged her that I feel like her getting back into work
would be appropriate and, in my opinion and hers, as we discuss it, she feels that
she could go back to work only she has no one to watch the baby.”
          {¶ 4} At the request of appellee Industrial Commission of Ohio, Dr.
Douglas C. Gula examined Kestler on March 8, 2006. He believed that Kestler
was at maximum medical improvement (“MMI”), but offered contradictory
opinions as to whether further diagnostic testing was necessary. Dr. Gula also
stated that Kestler was not temporarily totally disabled, but never specifically
addressed whether she could return to her former job – the standard by which
temporary total disability is measured. This is potentially significant because the
restrictions that he imposed may be inconsistent with Kestler’s physical-therapy
duties:
          {¶ 5} “I do believe the patient is capable of performing a light to
sedentary type of occupation. I do not see any limitation with regards to function
of the upper and lower extremities. She will alternate between sitting, standing
and walking. * * * Restrictions of weight would be approximately 20 lbs. lifting
and 10 lbs. carrying. She will only be able to utilize 20 lbs. from a push or pull
standpoint. Otherwise, I do not believe there are any limitations as related to the
upper extremity function.
          {¶ 6} “* * *
          {¶ 7} “I do believe the patient does indeed need an extensive course of
rehabilitation. She is definitely in desperate need of a work conditioning and
subsequently a work hardening program. Finally, a FCE [Functional Capacity
Evaluation] should be performed in the end to determine the exact capabilities of
the patient. I believe that a work condition-work hardening program is absolutely
essential in order to allow the patient to return to gainful employment.”
          {¶ 8} A commission staff hearing officer denied temporary total
disability compensation:




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       {¶ 9} “[T]he injured worker was not temporarily and totally disabled as a
result of the allowed conditions in the claim beginning on 10/11/2005. * * *
[T]he Hearing Officer relies upon the opinion of Dr. Douglas Gula, set forth in a
report dated 03/08/2006. Dr. Gula opined that the medical evidence did not
support the requested period of temporary total disability compensation. There is
no treatment note indicating the reason that the injured worker went off work on
10/11/2005.    The treatment notes in file from October and November 2005
indicate a notation from the physician that the injured worker ‘feels that she can
go back to work only she has no one to watch the baby.’ ”
       {¶ 10} Further appeal was refused.
       {¶ 11} Kestler filed a complaint in mandamus in the Court of Appeals for
Franklin County. The court upheld the commission’s order and denied the writ,
prompting this appeal as of right.
       {¶ 12} The commission denied temporary total disability compensation
based on Dr. Gula’s March 8, 2006 report and Dr. Scheidler’s office notes,
particularly the November 3, 2005 entry.         We must determine whether the
commission’s order is supported by the evidence.
       {¶ 13} Dr. Scheidler’s November 3, 2005 notation suggested that Kestler
should return to work and claimed that she said that she would do so but for her
lack of child care. Kestler, however, denies that child-care concerns prevented
her return to her former position of employment and emphasizes that she reported
to work on October 3 – just days prior to the disability period at issue — and
babysitting was obviously not an issue then. She also maintains that any alleged
child-care issues are irrelevant because she had no need for those services due to
her medical inability to return to her former position.
       {¶ 14} Kestler asserts that Dr. Scheidler’s office notes do not establish
that she could medically resume her former duties, and we agree that his notes are
vague. Scheidler never stated that Kestler was medically able to return to her




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former job as a physical therapist. He stated only that Kestler would benefit from
a return to some unspecified “work.” Dr. Scheidler’s notes also record the
continued presence of the symptoms that previously rendered her unable to return
to her former job. He reported chronic back pain, paraspinal spasm, and extreme
tenderness on palpation. Dr. Scheidler continued her pain medication,
recommended regular use of her TENS unit, and indicated that epidural injections
may be appropriate. We do not, therefore, find that Dr. Scheidler’s notes support
the conclusion that Kestler was medically able to return to her former job after
October 11, 2005.
         {¶ 15} The commission also relied on Dr. Gula’s March 8, 2006 report.
Dr. Gula concluded that Kestler (1) had reached MMI and (2) was not temporarily
totally disabled. The commission, however, did not indicate which of these
conclusions it adopted. This is problematic because although conclusion (2)
suggests that Kestler could return to her former job, Dr. Gula’s report contains
physical restrictions that might be inconsistent with her job duties and hence may
be too internally inconsistent in that regard to withstand scrutiny under State ex
rel. Lopez v. Indus. Comm. (1994), 69 Ohio St.3d 445, 449, 633 N.E.2d 528
(when report’s internal inconsistencies cannot be reconciled, report cannot qualify
as “some evidence” supporting commission’s decision).            Dr. Gula’s MMI
conclusion, on the other hand, appears less ambiguous and may be sufficient to
support the denial of temporary total compensation. The commission must clarify
which of Dr. Gula’s conclusions it was relying on to deny compensation.
         {¶ 16} We accordingly reverse the judgment of the court of appeals and
return the cause to the commission for further consideration and an amended
order.
                                                                 Judgment reversed.
         MOYER,     C.J.,   and   PFEIFER,       LUNDBERG   STRATTON,   O’CONNOR,
O’DONNELL, LANZINGER, and CUPP, JJ., concur.




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                             __________________
       James A. Whittaker, L.L.C., James A. Whittaker, and Laura I. Murphy, for
appellant.
       Richard Cordray, Attorney General, and Elise Porter, Deputy Solicitor, for
appellee.
                          ______________________




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