State ex rel. Thompson v. Fenix & Scisson, Inc.

482 N.E.2d 1241, 19 Ohio St. 3d 76, 19 Ohio B. 117, 1985 Ohio LEXIS 516

• Court: Ohio Supreme Court
• Decided: August 9, 1985
• Docket: No. 84-806
• Status: Published

Opinions

Clifford F. Brown, J.

Appellant urges that the commission’s order denying him permanent total disability benefits constitutes an abuse of discretion as it is unsupported by the evidence. We agree.

This court has repeatedly held that where there is no evidence upon which the commission could have based its factual conclusion, an abuse of discretion exists and mandamus becomes appropriate. See, e.g., State, ex rel. Wallace, v. Indus. Comm. (1979), 57 Ohio St. 2d 55, 58-59. Because the evidence before the commission in the instant cause, upon which the commission relied to reach its erroneous decision, consisted entirely of medical reports which are legally deficient to support the conclusion that appellant is not permanently and totally disabled, no evidence existed upon which the commission could have based such conclusion. Thus, the commission abused its discretion, and a writ of mandamus will issue.

The commission in its order dated February 7, 1983, based its decision denying appellant’s motion for permanent and total disability on the insufficient medical reports of five physicians, using this language: “This finding * * * is based on the medical reports of Drs. Wise, Borders, Cordell, McCloud, Hardie, the evidence in file and/or evidence adduced at the hearing.” With the exception of the report of Dr. Hardie, to be discussed infra, none of the reports cited by the commission in support of its order attempts to evaluate the combined effect of appellant’s two allowed conditions in determining whether he is permanently and totally disabled. Therefore, these reports cannot constitute evidence that appellant is not permanently and totally disabled.¹ See State, ex rel. Anderson, v. Indus. Comm. (1980), 62 Ohio St. 2d 166, 168-169 [16 O.O.3d 199].

Moreover, the sole remaining report cited by the commission, that of Dr. Hardie, a non-examining physician to whom the commission referred all the records for review, deviates from the evidentiary standard enunciated in Wallace, supra, and State, ex rel. Teece, v. Indus. Comm. (1981), 68 Ohio St. 2d 165 [22 O.o.3d 400],² These cases require that a non-examining physician expressly adopt the factual findings of one or more examining physicians, whose opinions appear in the record, as the basis of his own opinion. This standard also applies to medical opinions in combined-effect claims, where the examining physicians evaluate only one allowed condition. State, ex rel. Paragon, v. Indus. Comm. (1983), 5 Ohio St. 3d 72, 75. Dr. Hardie did not expressly adopt the factual findings of any examining physician, and therefore his report cannot constitute evidence upon which the commission may rely.

Thus, it is apparent that the commission relied entirely on medical reports which may not legally be termed evidence under Wallace and Teece, supra.

We disagree with the court of appeals’ statement that “the issue before the commission was whether relator [appellant] was permanently and totally disabled as the result of his physical injury alone, * * *” and consequently reject the erroneous conclusion flowing therefrom that “the commission was warranted in relying upon medical evidence evaluating the effects of that allowed condition only.” These statements of the court of appeals completely disregard the finding of the commission dated November 27, 1979, that appellant’s “conversion reaction be allowed in this claim. This order is based on the medical evidence of Drs. Rogers and Cordell.” This conversion reaction is descriptive of appellant’s psychiatric condition.

In addition, the court of appeals failed to recognize that the report of Dr. Mattill predated the allowance of appellant’s claim for conversion reaction. Moreover, Dr. Procter’s report described appellant’s present condition as “severe back & neck pain; nerves,” which indicates that he considered appellant’s psychiatric condition, combined with his physical disability, in formulating his opinion that appellant was permanently and totally disabled.

It is incorrect to criticize the decision we reach by stating that “[t]he * * * only reason to conjure today’s result is the assumed ‘invulnerability’ of Dr. David H. Procter’s report.” Dr. Procter’s report is only one element to support the invulnerability of our result. His report dated November 6, 1981, describing claimant’s present condition as “severe back & neck pain; nerves,” obviously refers both to a physical and a psychiatric condition. Dr. Procter’s report describing that part of claimant’s disability associated with nerves or psychiatric condition is further corroborated by the medical report of Dr. Sheldon Rogers dated April 26, 1979, that “[t]his individual appears to be suffering from a conversion reaction.” On November 27, 1979, the commission made an order recognizing claimant’s conversion reaction in this language: “That Conversion Reaction be allowed in this claim. This order is based on the medical evidence of Drs. Rogers and Cor-dell.” Thus, the reports of Drs. Rogers and Cordell, as well as the order of the commission, also establish claimant’s psychiatric condition or conversion reaction (nerves). It is a desperate groping at straws to assert that our decision today rests solely on the report of Dr. Procter, and to strip that report of its true meaning and significance.

Thus, the issue of the combined effect of appellant’s two allowed conditions was clearly before the commission. It follows that the commission’s reliance on medical evidence evaluating the effects of only one allowed condition, in reaching a decision finding appellant was not permanently and totally disabled, constituted an abuse of discretion. Anderson, supra, and Norman, infra. Mandamus thus becomes appropriate. Id.

We held in State, ex rel. Anderson, v. Indus. Comm., supra, that where the issue before the commission is whether a claimant is permanently and totally disabled on account of the combined effect of two or more allowed conditions, medical testimony not evaluating the combined effect of those conditions can not constitute evidence that the claimant is not permanently and totally disabled. That is still good law, and therefore applies to discrediting the medical reports upon which the commission relied in finding a claimant not permanently and totally disabled. However, we expressly stated in State, ex rel. Norman, v. Indus. Comm. (1982), 1 Ohio St. 3d 263, syllabus, that the rule stated in State, ex rel. Anderson, v. Indus. Comm., supra, “applies only to medical reports which conclude a claimant is not permanently and totally disabled. Where a medical report concludes that a claimant is permanently and totally disabled on the basis of one condition alone, the Anderson test does not preclude the use of that report as evidence of claimant’s permanent and total disability.” State, ex rel. Hughes, v. Indus. Comm. (1982), 1 Ohio St. 3d 57, 62, Clifford F. Brown, J., concurring opinion. We find no good reason for retreating at this time from the excellent postulation of the law in Norman, supra.

Furthermore, the instant cause is strikingly similar to State, ex rel. Hughes, v. Indus. Comm. (1982), 1 Ohio St. 3d 57. In a well-reasoned analysis authored by Justice Locher, this court held that “[n]o party may discredit a medical report which finds a workers’ compensation claimant to be permanently and totally disabled as a result of two allowed conditions by treating, as one report, distinct reports, each of which evaluates only one of the allowed conditions.” Id. at syllabus. Further, Justice Locher emphasized the inapplicability of Teece, supra, to a situation such as the one at bar where “no testimony exists which could effectively undermine, as did the one report in Teece, the credibility of * * * reports * * * which evaluated [the claimant's] physical and psychiatric conditions and found him to be permanently and totally disabled.” Id. at 60.

Thus, no report which does not evaluate the combined effect of both conditions may be used pursuant to Teece to test the credibility of any report which does address such combined effect and which finds the claimant permanently and totally disabled. In the instant cause, therefore, the credibility of Dr. Procter’s report, being the sole report which addresses both conditions and finds permanent and total disability, is invulnerable to attack from any report which does not evaluate both conditions. None of the other medical reports in this case addresses both conditions, except Dr. Hardie’s, which cannot constitute evidence for reasons enunciated supra. Therefore, under the express holding of Hughes, Teece is irrelevant to the instant cause.

Accordingly, where the record before the Industrial Commission contains reliable, probative and substantial evidence in accordance with the law to support a factual finding and determination that a claimant is permanently and totally disabled, and there is no evidence to the contrary which meets such standards, a determination of the commission that the claimant is not permanently and totally disabled is an abuse of discretion by the commission for which the claimant will be afforded relief in an action in mandamus.³

Accordingly, the judgment of the court of appeals must be reversed, and the writ of mandamus is hereby allowed.

Judgment reversed and writ allowed.

Celebrezze, C.J., Sweeney and Douglas, JJ., concur. Locher, Holmes and Wright, JJ., dissent.

1 The fact that Dr. McCloud’s report found no evidence of permanent total disability does not tend to show that such disability does not exist when appellant’s physical complaint is evaluated in combination with his psychiatric condition. Dr. McCloud’s report addressed appellant’s physical condition only. Nor does Dr. Borders’ report, finding appellant twenty-five percent permanently and partially disabled based on his psychiatric condition alone, constitute evidence that appellant cannot be permanently and totally disabled based on the combined effect of both conditions. This is an elementary and straightforward application of our holding in State, ex rel. Anderson, v. Indus. Comm. (1980), 62 Ohio St. 2d 166 [16 O.O.3d 199],

It should be emphasized that Dr. McCloud did not report that he found no evidence of disability whatsoever. He merely stated that he found no evidence of permanent total disability. This is not the equivalent of finding no physical disability of any degree.

2 Our decision today is not one which “demonstrates a total disregard for the purpose of mandamus and completely emasculates State, ex rel. Teece, v. Indus. Comm. (1981), 68 Ohio St. 2d 165 [22 O.O.3d 400].” In Teece this court affirmed the court of appeals’ denial of a writ of mandamus to compel the Industrial Commission to award claimant permanent total disability. Nonetheless we recognized the viability of our earlier holdings in Anderson and Wallace, supra, in this language at 167-168:

“This court agrees with appellant that the report of Dr. Kessler constitutes evidence that the claimant is permanently and totally disabled since it complied with the requirements set forth in State, ex rel. Anderson, v. Indus. Comm. (1980), 62 Ohio St. 2d 166 [16 O.O.3d 199], that where a claimant’s application for permanent and total disability compensation is based on two or more conditions which have been allowed by the commission, medical testimony must take into account the combined effects of these conditions in determining disability.

“* * * This court’s holding in State, ex rel. Wallace, v. Indus. Comm, requires a non-examining physician to expressly adopt the factual findings of all examining physicians which appear in the record as the basis of his opinion. * * *”

In Teece, there was the medical report of Dr. Kessler evaluating two separate physical injuries only as causing permanent and total disability, but not evaluating the psychiatric condition. Teece, supra, at 165. This conflicted with a medical report also evaluating the two separate physical injuries only, but not the psychiatric condition, concluding in substance that relator Teece was not permanently and totally disabled, as follows: “ ‘patient does not have sufficient objective evidence to warrant removing her from work capability.’ ” Teece, supra, at 166.

Here, in the Thompson case, unlike Teece, we do not have a medical report evaluating the physical injury alone as permanent and total disability that conflicts with a medical report evaluating physical injury alone. Our decision today is consistent with Teece and it need not be overruled.

3 We adopt this standard today for the purpose of clarifying our previous holdings in State, ex rel. Norman, v. Indus. Comm. (1982), 1 Ohio St. 3d 263, and State, ex rel. Hughes, v. Indus. Comm. (1982), 1 Ohio St. 3d 57. Both Norman and Hughes address the evidentiary use of medical reports in combined-effect claims. The standard announced today is a distillation of the law as enunciated in those cases, as well as in State, ex rel. Anderson, v. Indus. Comm., supra.