The State ex rel. Pepsi-Cola General Bottlers, Inc., Appellant, v. Industrial Commission of Ohio; Woodby, Appellee, 88 Ohio St. 3d 23

Francis E. Sweeney, Sr., J. Appellant argues that Dr. Booth’s assessment that Woodby had achieved maximum medical improvement was unconditional, and thus, it should not have to pay temporary total disability compensation for the period from March 25, 1996 through May 23, 1996. For the following reasons, we reject appellant’s contention and affirm the judgment of the court of appeals.

Pursuant to R.C. 4123.56, payment of temporary total disability compensation shall not be made when, inter alia, the employee has reached “maximum medical improvement.” However, in the past we have held that a treating physician’s determination of maximum medical improvement that is contingent upon further evaluation or treatment does not necessarily indicate that the physician believes the employee has reached maximum medical improvement. See State ex rel. Eberhardt v. Flxible Corp. (1994), 70 Ohio St.3d 649, 640 N.E.2d 815; State ex rel. Copeland Corp. v. Indus. Comm. (1990), 53 Ohio St.3d 238, 559 N.E.2d 1310.

In State ex rel. Jeep Corp. v. Indus. Comm. (1991), 62 Ohio St.3d 64, 577 N.E.2d 1095, the claimant’s physician stated that although claimant appeared to have reached “maximum medical recovery,” his opinion was dependent “upon the results of the physical capacity evaluation,” which may have indicated that the claimant might “benefit from a course of kinesiotherapy.” We determined that although the doctor opined that the claimant appeared to have reached maximum medical recovery, the other language in his report “appears to qualify Dr.

Riethmiller’s initial impression that maximum recovery may have been reached, and may be interpreted as proposing the opposite — that further improvement could not be ruled out.” Id., 62 Ohio St.3d at 67, 577 N.E.2d at 1098. Thus, we found that the commission’s award of temporary total disability compensation was supported by “some evidence.” Id. In the instant ease, although Dr.

Booth stated that Woodby had reached maximum medical improvement and could “possibly be able to return to work in the very near future,” he went on to state that “I would like to have a functional compacity [sic ] evaluation performed as soon as possible at Concord[e Therapy Group] prior to the patient returning to work.” Based on this, the District Hearing Officer stated that the “maximum medical improvement found by Dr. Booth was conditional in that he had not seen the consultation report [of Dr. Dixon] and wanted a functional capacity evaluation done.” Similar to the situation in Jeep, Dr.

Booth’s statement could have been properly interpreted by the Industrial Commission to indicate Dr. Booth’s belief that a functional capacity evaluation would suggest whether further treatment may have been beneficial to Woodby. Appellant argues that Dr. Booth’s subsequent statement contained in his letter dated June 7, 1996, reaffirmed his opinion that Woodby had reached maximum medical improvement without qualification. However, that statement merely reiterates that Dr. Booth determined that Woodby had reached maximum medical improvement at that time.

It does not clarify that his opinion of maximum medical improvement was not contingent upon the completion of a functional capacity evaluation. We find that the Industrial Commission’s order supporting temporary total disability compensation is based on “some evidence,” as set forth in State ex rel. Burley v. Coil Packing, Inc. (1987), 31 Ohio St.3d 18, 31 OBR 70, 508 N.E.2d 936, syllabus. Therefore, the judgment of the court of appeals is affirmed. Judgment affirmed. Douglas, Resnick, Pfeifer and Lundberg Stratton, JJ., concur. Moyer, C.J., and Cook, J., dissent.