Opinion
No. 83-1035
Decided July 25, 1984.
Workers' compensation — Commission order denying permanent and total disability sustained by some evidence, when.
APPEAL from the Court of Appeals for Franklin County.
Appellant, A.C. Hudson, was injured on February 20, 1961, while in the course and scope of his employment as a truck driver for appellee Yellow Freight System, Inc. Appellant was chaining down a load on his truck trailer when he slipped and fell off the trailer, injuring his left leg.
Appellant's workers' compensation claim was allowed for "fracture of left tibia and fibula, left leg." He was able to return to work in 1963 and obtained employment in a stockyard for one year. Appellant was then employed as a truck driver from 1964 to 1975, when he was diagnosed as having histoplasmosis in his eyes.
In 1964, appellant was found to have a permanent partial disability of thirty-five percent as a result of the injury to his left leg. His permanent partial disability benefits were raised to fifty-five percent in 1965. In 1977, appellant's claim was amended to include disability to his lower back which was caused by the leg injury.
On March 19, 1979, appellant filed an application with appellee Industrial Commission of Ohio (hereinafter "commission") requesting compensation for permanent total disability. In support of his application, appellant submitted the report of Dr. Richard M. Loeffler.
For purposes of this application, appellant was examined by Drs. Ned B. Hein and Bruce H. Dorman, whose reports were submitted to the commission. It was the opinion of Dr. Hein that appellant could not be employed as a truck driver but that he was capable of other light work, such as sitting at a desk, bookkeeping, or time-keeping. Dr. Dorman stated that appellant was capable of sedentary work.
The matter came on for hearing before the commission on February 9, 1982, at which time appellant was referred to Dr. William Reynolds of the commission's medical section for further examination. Dr. Reynolds found that appellant was unable to return to work as a truck driver and, with his age and fifth-grade education, Hudson's chance of being trained for a sedentary job was remote. On this basis, Dr. Reynolds concluded that appellant was permanently and totally disabled.
Appellant's file was subsequently referred for review to Dr. Paul H. Dillahunt. Based on the reports in the file, Dr. Dillahunt opined that appellant was not suffering from permanent total disability.
On August 3, 1982, the commission denied appellant's motion for compensation for permanent total disability based upon "* * * the medical reports of Dr. Reynolds and Dr. Dillahunt, evidence in the file and evidence adduced at the hearing."
Appellant brought this action in mandamus in the court of appeals alleging that the commission abused its discretion. He sought the issuance of a writ to compel the commission to grant his application for permanent total disability benefits.
The court of appeals denied the writ and the cause is now before this court upon an appeal as of right.
Gallon, Kalniz Iorio Co., L.P.A., and Ms. Dorothy B. McCrory, for appellant.
Mr. Anthony J. Celebrezze, Jr., attorney general, Mr. Douglas M. Kennedy and Mr. Lee M. Smith, for appellee Industrial Commission.
Messrs. Eastman Smith, Mr. Richard T. Sargeant and Mr. John T. Landwehr, for appellee Yellow Freight System, Inc.
The court of appeals stated two reasons for its denial of the writ. First, the court found that the reports of Drs. Hein and Dorman indicated that appellant could do sedentary work and was thus fit for employment. Second, the court found that even if appellant was permanently and totally disabled, there was evidence in the file to support a finding that such disability was due to his unrelated eye condition, rather than the injuries recognized in his claim.
Appellant argues that all the evidence before the commission indicated that he was permanently and totally disabled from the allowed conditions when considered in view of his age, education and transferable skills. We disagree.
This court has consistently recognized that the determination of disputed facts is within the jurisdiction of the commission. It is within the authority of the commission to weigh credible evidence and to make decisions based thereon. State, ex rel. Allerton, v. Indus. Comm. (1982), 69 Ohio St.2d 396 [23 O.O.3d 358]; State, ex rel. Haines, v. Indus. Comm. (1972), 29 Ohio St.2d 15 [58 O.O.2d 70]; State, ex rel. Allied Wheel Products, Inc., v. Indus. Comm. (1956), 166 Ohio St. 47 [1 O.O.2d 190].
The standard of review used by courts to determine the validity of the commission's findings is not subject to question. Where the record contains some evidence to support the commission's factual findings, such findings will remain undisturbed and are not subject to an action in mandamus. State, ex rel. GF Business Equip., Inc., v. Indus. Comm. (1981), 66 Ohio St.2d 446 [66 O.O.3d 379]; State, ex rel. Dodson, v. Indus. Comm. (1980), 62 Ohio St.2d 408 [16 O.O.3d 439]; State, ex rel. Humble, v. Mark Concepts, Inc. (1979), 60 Ohio St.2d 77 [14 O.O.3d 275]. This court will not reweigh the evidence presented to the commission. State, ex rel. Mitchell, v. Robbins Myers, Inc. (1983), 6 Ohio St.3d 481. See, also, State, ex rel. G F Business Equip., Inc., supra; State, ex rel. Kilburn, v. Indus. Comm. (1982), 1 Ohio St.3d 103, 105.
In State, ex rel. Mitchell, supra, we also stated that:
"* * * district hearing officers, as well as regional boards of review and the Industrial Commission, must specifically state which evidence and only that evidence which has been relied upon to reach their conclusion, and a brief explanation stating why the claimant is or is not entitled to the benefits requested. Moreover, this court will no longer search the commission's file for `some evidence' to support an order of the commission not otherwise specified as a basis for its decision." Id. at 483-484.
Due to the fact that the commission's order preceded the Mitchell decision, we decline to retrospectively apply its requirement in this case. However, if we were to do so, the commission clearly satisfied the requirement as it stated its reliance on the medical report of Dr. Dillahunt in denying appellant's request for permanent total disability benefits.
The record contains some evidence that appellant is not permanently and totally disabled. In fact, the reports of Dr. Hein and Dr. Dorman indicate that appellant is able to do sedentary work. In addition, Dr. Dillahunt stated that appellant is not suffering from permanent and total disability. Therefore, there is some evidence that appellant is fit for employment and the commission did not abuse its discretion in denying his motion for compensation for permanent total disability.
Accordingly, the judgment of the court of appeals is affirmed.
Judgment affirmed.
CELEBREZZE, C.J., W. BROWN, LOCHER, HOLMES and HOFFMAN, JJ., concur.
SWEENEY and C. BROWN, JJ., dissent.
HOFFMAN, J., of the Fifth Appellate District, sitting for J.P. CELEBREZZE, J.
I dissent because, for the following reasons, I agree with the appellant's contention that all the evidence before the commission indicated that the claimant was permanently and totally disabled from the allowed conditions when considered in view of his age, education and transferable skills.
I first note that the reports of Drs. Hein and Dorman were not specified in the commission's order as being the basis for its decision. In State, ex rel. Mitchell, v. Robbins Myers, Inc. (1983), 6 Ohio St.3d 481, 483-484, this court stated, "* * * district hearing officers, as well as regional boards of review and the Industrial Commission, must specifically state which evidence and only that evidence which has been relied upon to reach their conclusion, and a brief explanation stating why the claimant is or is not entitled to the benefits requested. Moreover, this court will no longer search the commission's file for `some evidence' to support an order of the commission not otherwise specified as a basis for its decision."
There is no reason, if in fact the commission based its decision on the reports of Drs. Hein and Dorman, why it could not have so stated in its order. This case presents a situation, like that contemplated in Mitchell, where medical evidence is afforded greater credibility in a mandamus action than originally ascribed to it by the commission. This is simply another form of reweighing the medical evidence in a mandamus action — a practice which this court declines to follow. See, e.g., State, ex rel. G F Business Equip., Inc., v. Indus. Comm. (1981), 66 Ohio St.2d 446 [20 O.O.3d 379].
Accordingly, review is confined to determining whether the commission's order is supported by the evidence specified, namely the reports of Drs. Reynolds and Dillahunt. The report of Dr. Reynolds clearly does not support the order of the commission inasmuch as it concludes that appellant is permanently and totally disabled.
The report of Dr. Dillahunt is less clear. On the one hand, it concludes "* * * that claimant does not suffer a PTD." However, in reaching this conclusion, Dr. Dillahunt reviewed the medical evidence on file and conceded that appellant "may be unable to perform substantial gainful activity due to age, education, economic conditions, [and] medical factors * * *."
As noted in State, ex rel. Jennings, v. Indus. Comm. (1982), 1 Ohio St.3d 101, 102, the Medical Examination Manual issued by the commission's Medical Section states, at page vi, "* * * that permanent total disability `* * * is established when the injury has caused the injured worker to be unfit for sustained remunerative employment.'" Applying this definition of permanent total disability, Dr. Dillahunt's conclusion is neither consistent with nor supported by his findings. Thus, the findings of Dr. Dillahunt do not support the commission's order.
Where there is no evidence to support the order of the commission, an abuse of discretion is shown, and mandamus becomes appropriate. State, ex rel. Hutton, v. Indus. Comm. (1972), 29 Ohio St.2d 9 [58 O.O.2d 66]; State, ex rel. Kramer, v. Indus. Comm. (1979), 59 Ohio St.2d 39, 42 [13 O.O.3d 30].
For the foregoing reasons the judgment of the court of appeals should be reversed and the writ granted.
SWEENEY, J., concurs in the foregoing dissenting opinion.