[Cite as State ex rel. DaimlerChrysler Corp. v. Indus. Comm., 121 Ohio St.3d 341, 2009-Ohio-
1219.]




    THE STATE EX REL. DAIMLERCHRYSLER CORPORATION, APPELLANT, v.
              INDUSTRIAL COMMISSION OF OHIO ET AL., APPELLEES.
          [Cite as State ex rel. DaimlerChrysler Corp. v. Indus. Comm.,
                        121 Ohio St.3d 341, 2009-Ohio-1219.]
Workers’ compensation — Compensation for temporary total disability —
        Permanent inability to return to former position of employment —
        Maximum medical improvement — R.C. 4123.56(A).
  (No. 2007-2020 — Submitted January 13, 2009 — Decided March 24, 2009.)
              APPEAL from the Court of Appeals for Franklin County,
                           No. 06AP-968, 2007-Ohio-4799.
                                 __________________
        Per Curiam.
        {¶ 1} Appellee Kathleen E. Moran is receiving temporary total disability
compensation. All the medical evidence before us indicates that her allowed
conditions have not reached maximum medical improvement (“MMI”), which
would disqualify her from temporary total disability compensation.                But her
attending physician has also stated that she can never return to her former position
of employment. Moran’s employer, DaimlerChrysler Corporation (now Chrysler
L.L.C.), appellant, claims that this declaration justifies termination of Moran’s
temporary total disability compensation. Appellee Industrial Commission of Ohio
rejected that argument, as did the Court of Appeals for Franklin County. That
issue is now before us on Chrysler’s appeal as of right.
        {¶ 2} R.C. 4123.56(A) bars temporary total disability compensation
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 the employee’s former position of employment, when work within the physical
                            SUPREME COURT OF OHIO




capabilities of the employee is made available by the employer or another
employer, or when the employee has reached the maximum medical
improvement.”
       {¶ 3} Ohio Adm.Code 4121-3-32(A)(1), in turn, defines “maximum
medical improvement” as “a treatment plateau (static or well-stabilized) at which
no fundamental functional or physiological change can be expected within
reasonable medical probability in spite of continuing medical or rehabilitative
procedures.” Chrysler admits that Moran has not attained MMI and that none of
the other disqualifying events listed in R.C. 4123.56(A) has occurred. It urges
termination nevertheless because, according to her doctor, Moran is permanently
unable to return to her former position of employment. In arguing that this, too,
forecloses temporary total disability compensation, Chrysler relies on language
from State ex rel. Ramirez v. Indus. Comm. (1982), 69 Ohio St.2d 630, 632, 23
O.O.3d 518, 433 N.E.2d 586, quoting the Court of Appeals for Franklin County:
       {¶ 4} “ ‘An employee is entitled to be paid temporary total disability
when injured and unable to work until one of the following three things occur[s]:
(1) he has returned to work, (2) his treating physician has made a written
statement that he is capable of returning to his former position of employment, or
(3) the temporary disability has become permanent.’ ”
       {¶ 5} Chrysler proposes that a temporary disability has “become
permanent” when a claimant is permanently unable to return to the former
position of employment. Its position presumably rests on Ramirez’s reference to
“disability” and the long-standing definition of that term as “ ‘the effect that the
medical impairment has on the claimant’s ability to work.’ ” Meeks v. Ohio Brass
Co. (1984), 10 Ohio St.3d 147, 148, 10 OBR 482, 462 N.E.2d 389, quoting the
Industrial Commission’s Medical Examination Manual. Chrysler thus concludes
that MMI and “Ramirez permanency” are distinct concepts, meaning that the
permanency of either the underlying medical condition or the inability to return to




                                         2
                                January Term, 2009




the former position of employment warrants termination of temporary total
disability compensation.     Appellees and their amici collectively offer four
counterarguments. Ultimately, analysis favors appellees.
       {¶ 6} Appellees initially accuse Chrysler of ignoring the history and
meaning of R.C. 4123.56(A). The statute was amended four years after Ramirez
was decided but did not incorporate the Ramirez language cited by Chrysler.
Am.Sub.S.B. No. 307, 141 Ohio Laws, Part I, 766.             Instead, the General
Assembly elected to address the temporariness component of temporary total
disability compensation in terms of MMI. Moreover, in defining MMI in the
Ohio Administrative Code, the Industrial Commission did not adopt Ramirez’s
language and instead crafted a definition that referred specifically to the
underlying medical condition. According to appellees, these choices reflect a
legislative and administrative desire to view permanency from a medical, not
employment, perspective.
       {¶ 7} Appellees next assert that Chrysler has misread Ramirez by
focusing on language without regard to context. Appellees emphasize that in
Ramirez, no one ever alleged that the claimant’s condition was no longer
temporary, so permanency was never at issue. Instead, we were asked to decide
whether a claimant who could not return to his former position of employment
should be deemed to have a partial disability or a total one. We found the latter
and, in so doing, created the definition of totality still used today. Appellees
believe that because permanency was not at issue, there was no need for the
decision to define the term. They are not convinced, therefore, that in referring to
permanency in terms of a “disability,” this court was definitively stating that
permanency referred to the status of the claimant’s inability to work and not to the
underlying medical condition.
       {¶ 8} This argument ties into a second point. Before 1987, the terms
“disability” and “impairment” were often used interchangeably. This practice




                                         3
                             SUPREME COURT OF OHIO




was, in fact, so prevalent that we felt compelled in 1987 to correct it. State ex rel.
Stephenson v. Indus. Comm. (1987), 31 Ohio St.3d 167, 171, 31 OBR 369, 509
N.E.2d 946, stressed that employing the terms interchangeably was inappropriate
because they were not synonymous.           “Impairment” was a medical term that
referred to “ ‘the amount of the claimant’s anatomical and/or mental loss of
function’ ” attributable to the industrial injury. Ohio Brass, 10 Ohio St.3d at 148,
10 OBR 482, 462 N.E.2d 389, quoting the Industrial Commission’s Medical
Examination Manual. “Disability” was a legal designation of the effect of the
medical impairment on the ability to work. Id. at 149. Because Ramirez was
written during this time frame, appellees again question the deliberateness with
which the term “disability” was selected.
       {¶ 9} Appellees next assert that a large body of case law both before and
after Ramirez contradicts the interpretation that Chrysler espouses. As early as
1944, this court articulated a definition of permanency that foreshadowed the
definition of MMI now in the Administrative Code. Logsdon v. Indus. Comm.
(1944), 143 Ohio St. 508, 28 O.O. 429, 57 N.E.2d 75, held at paragraph two of
the syllabus:
       {¶ 10} “The term ‘permanent’ as applied to disability under the
workmen’s compensation law does not mean that such disability must necessarily
continue for the life of a claimant, but that it will, with reasonable probability,
continue for an indefinite period of time without any present indication of
recovery therefrom.”
       {¶ 11} Common to both Logsdon and Ohio Adm.Code 4121-3-32(A)(1) is
a probable lack of improvement, which, in the context of the Administrative Code
definition, clearly refers to the underlying medical condition. Logsdon does, of
course, refer to “disability,” but it also preceded Stephenson, so it is not clear
whether the term was employed purposefully or in a more generic sense.




                                          4
                                January Term, 2009




       {¶ 12} Logsdon was not cited in Ramirez. It was, however, cited four
years after Ramirez in a case that squarely addressed the concept of permanency.
In Vulcan Materials Co. v. Indus. Comm. (1986), 25 Ohio St.3d 31, 33, 25 OBR
26, 494 N.E.2d 1125, we held:
       {¶ 13} “[I]n the consideration of the permanency of a disability, the
commission need not determine whether the claimant could return to his former
position of employment.      The commission’s designation of a disability as
permanent relates solely to the perceived longevity of the condition at issue. It
has absolutely no bearing upon the claimant’s ability to perform the tasks
involved in his former position of employment.”
       {¶ 14} Vulcan was followed by State ex rel. Gen. Am. Transp. Corp. v.
Indus. Comm. (1990), 48 Ohio St.3d 25, 548 N.E.2d 928. General American
reaffirmed Vulcan’s definition, explaining that “[a] claimant’s permanent inability
to return to his former position of employment does not mean the claimant’s
medical condition will not improve.” Id. at 26.
       {¶ 15} At approximately the same time, the Court of Appeals for Franklin
County decided State ex rel. Matlack, Inc. v. Indus. Comm. (1991), 73 Ohio
App.3d 648, 655, 598 N.E.2d 121, which ruled:
       {¶ 16} “[T]emporary total benefits will be paid during the healing and
treatment period for the condition until the claimant has reached some certain
level of stabilization. When this stabilization has been reached and no further
improvement is probable, then the condition is permanent * * *.” (Citation
omitted.)
       {¶ 17} In State ex rel. Youghiogheny & Ohio Coal Co. v. Kohler (1990),
55 Ohio St.3d 109, 110, 564 N.E.2d 76, we stated that “[p]ermanency relates to
the perceived longevity of the condition” and treated “permanency” and “MMI”
as synonymous. State ex rel. Eberhardt v. Flxible Corp. (1994), 70 Ohio St.3d
649, 653, 640 N.E.2d 815, added that “so long as the claimant’s condition has not




                                        5
                             SUPREME COURT OF OHIO




stabilized, and further medical improvement can be expected, TTD benefits are
payable.”
       {¶ 18} In contrast to these cases, Chrysler points to State ex rel.
Advantage Tank Lines v. Indus. Comm., 107 Ohio St.3d 16, 2005-Ohio-5829, 836
N.E.2d 550.     At issue was the claimant’s ability to concurrently receive
permanent partial and temporary total compensation for the same condition. The
employer argued that it was incongruous to simultaneously pay compensation for
both permanent and a temporary disability for the same condition.
       {¶ 19} We affirmed the ability to receive dual payment under the right
circumstances. We explained that the two forms of compensation focused on
completely different things: while temporary total disability compensation
centered on the claimant’s ability to return to the former position of employment,
permanent partial disability compensation was unconcerned with a claimant’s
ability to work. We also noted that “permanency” had a different meaning as
applied to each form of compensation. In describing permanency in the context
of temporary total disability, we wrote:
       {¶ 20} “TTC awards are based exclusively on a claimant’s ability to
return to his or her former position of employment.             In this context, a
determination that a disability is permanent means that the condition will never
improve to the point where the claimant can resume his or her former job. Thus,
when this determination is made, the disability is no longer considered temporary,
so TTC is terminated.” (Emphasis sic; citations omitted.) Advantage Tank Lines,
107 Ohio St.3d 16, 2005-Ohio-5829, 836 N.E.2d 550, ¶ 8.
       {¶ 21} Chrysler cites this passage as proof that “permanency” and “MMI”
remain distinct and that temporary total disability compensation must cease if
either of those conditions is met. The court of appeals rejected that contention:
       {¶ 22} “Although Advantage does contain dicta that seems to support
relator’s argument, Advantage did not directly address the issue presented here.




                                           6
                                   January Term, 2009




We agree with the magistrate that the issue before us was directly addressed in
Vulcan wherein the court expressly held that ‘[t]he commission’s designation of a
disability as permanent relates solely to the perceived longevity of the condition at
issue. It has absolutely no bearing upon the claimant’s ability to perform the tasks
involved in his former position of employment.’ Vulcan [25 Ohio St.3d] at 33 [25
OBR 26, 494 N.E.2d 1125]. Although Advantage was decided after Vulcan, the
court in Advantage did not discuss, let alone overrule, Vulcan. Moreover, as
previously noted, the language relator relies on in Advantage is dicta.          The
holding in Vulcan is controlling.” Franklin App. No. 06AP-968, 2007-Ohio-
4799, at ¶ 4.
       {¶ 23} The court of appeals’ observations are compelling. It is perhaps
telling that the only case on temporary total disability compensation cited in the
entire Advantage opinion is Ramirez. There is no mention of Logsdon, Vulcan,
Matlack, or any of the cases previously discussed that both expressly defined
permanency and called into question the significance of Ramirez’s reference to
that concept. Given the amount of case law that has addressed permanency in
terms of the underlying medical condition, the court of appeals’ reasoning has
substantial merit.
       {¶ 24} Ultimately, appellees and their amici offer a stronger argument
than Chrysler does. For the reasons set forth above, we continue to declare MMI
to be the only standard by which temporary total disability compensation can be
terminated on a basis of permanency.
       {¶ 25} The judgment of the court of appeals is affirmed.
                                                                   Judgment affirmed.
       MOYER,        C.J.,   and    PFEIFER,       LUNDBERG   STRATTON,   O’CONNOR,
O’DONNELL, and CUPP, JJ., concur.
       LANZINGER, J., not participating.
                                   __________________




                                               7
                             SUPREME COURT OF OHIO




         Eastman & Smith, Ltd., Thomas J. Gibney, and A. Brooke Phelps, for
appellant.
         Richard A. Cordray, Attorney General, and Andrew J. Alatis, Assistant
Attorney General, for appellee Industrial Commission.
         Polofka & Van Berkom and John R. Polofka, for appellee Kathleen E.
Moran.
         Garvin & Hickey, L.L.C., Preston J. Garvin, and Michael J. Hickey,
urging reversal for amicus curiae Ohio Chamber of Commerce.
         Vorys, Sater, Seymour & Pease, L.L.P., and Robert A. Minor, urging
reversal for amicus curiae Ohio Self-Insurers’ Association.
         Bricker & Eckler, L.L.P., and Thomas R. Sant, urging reversal for amicus
curiae Ohio Chapter of the National Federation of Independent Business.
         Stewart Jaffy & Associates Co., L.P.A., Stewart R. Jaffy, and Marc J.
Jaffy, urging affirmance for amicus curiae Ohio AFL-CIO.
         Philip J. Fulton Law Office and Philip J. Fulton, urging affirmance for
amicus curiae Ohio Association for Justice.
                            ______________________




                                        8
