State ex rel. Didiano v. Beshara

648 N.E.2d 1359, 72 Ohio St. 3d 255

Opinions

Per Curiam.

In Didiano I, we prevented the commission from stopping permanent total disability compensation without a finding that claimant was no longer permanently and totally disabled. The commission has since made such a finding. Among the objections to that determination is claimant’s assertion that the finding is unsupported by “some evidence.” Upon review, we concur.

Claimant’s cessation of permanent total disability compensation was premised on the reports of five physicians. Because the commission relied on the reports of Drs. Moorstein, Vamvas and Steurer in support of its original permanent total disability award, those three reports cannot now be “some evidence” supporting its denial of further benefits. State ex rel. Zamora v. Indus. Comm. (1989), 45 Ohio St.3d 17, 543 N.E.2d 87.

With the removal of these three reports, only the reports of Drs. Katz and DiDomenico remain. These two doctors, however, limited their opinions to claimant’s orthopedic conditions. There is no indication that the commission factored in claimant’s serious psychiatric condition before disallowing permanent total disability compensation. Because the commission cannot discontinue permanent total disability compensation without considering all allowed conditions, the commission erred in stopping permanent total disability benefits.

Accordingly, the writ of mandamus is allowed.

Writ allowed.

Moyer, C.J., Douglas, Resnick, F.E. Sweeney and Pfeifer, JJ., concur. Wright and Cook, JJ., dissent.