Opinion
No. 85-1351
Decided August 6, 1986.
Workers' compensation — Medical report must expressly adopt findings revealed by examining physician's report, when.
APPEAL from the Court of Appeals for Franklin County.
Appellant, Fred Montello, was injured on August 27, 1970, while in the course and scope of his employment with Cleveland Builders Supply Company, an appellee herein. On that day, appellant was driving a concrete mixer which veered off the roadway and rolled over causing him to sustain injuries, recognized by the Industrial Commission, also an appellee herein, for "fracture [of the] left clavicle, left 12th rib, ecc[h]ymosis left orbit, abrasions left shoulder axilla, upper back, left eye, concussion, nose left side of face."
As a result of these injuries, appellant received a twelve percent permanent partial disability award in 1972. Then in 1975, and again in 1980, appellant asked for and received increases in permanent partial disability compensation for a total award of thirty-eight percent. In May 1982, appellant's disability was further increased to forty-eight percent at his request, based upon medical reports submitted by Drs. Finley F. Neuman, Donavin A. Baumgartner, Jr., and F.M. Freimann.
The present cause arises as a result of appellant's request in January 1983 for a further increase in permanent partial compensation. This application for additional benefits was accompanied by the medical report of Dr. Lydia Ljuboja, appellant's treating physician. The report was strikingly similar to the June 1981 report submitted by Dr. Neuman with regard to the history of the injury, medical findings and the ultimate conclusion expressed therein.
The record suggests that Drs. Neuman and Ljuboja shared the same medical practice.
Appellant's file was subsequently referred to Dr. David Arnold of the commission's medical staff for analysis. Dr. Arnold did not conduct a medical examination, but instead concluded that Dr. Ljuboja's report did not warrant a further increase in benefits. On September 6, 1983, the commission denied appellant's application based upon the medical reports of Drs. Arnold and Ljuboja.
Following the denial of his application for reconsideration, appellant initiated the within action in mandamus in the court of appeals seeking the issuance of a writ compelling the commission to grant his application for increased benefits.
The court of appeals denied the writ and the cause is now before this court on an appeal as of right.
Mancino, Mancino Mancino and Paul Mancino, Jr., for appellant.
Anthony J. Celebrezze, Jr., attorney general, and Mark E. Mastrangelo, for appellee Industrial Commission.
Squire, Sanders Dempsey, Robert H. Gillespy, David J. Somrak and Preston J. Garvin, for appellee Cleveland Builders Supply Company.
Appellant's application for an increase in permanent partial disability benefits was governed by R.C. 4123.57 which provides, in pertinent part:
"(B) The district hearing officer, upon such application, shall determine the percentage of the employee's permanent disability, except such as is subject to division (C) of this section, based upon that condition of the employee resulting from the injury or occupational disease and causing permanent impairment evidenced by medical or clinical findings reasonably demonstrable. * * * Except on application for reconsideration, review, or modification, which is filed within ten days after the date of receipt of the decision of the district hearing officer, in no instance shall the former award be modified unless it is found from such medical or clinical findings that the condition of the claimant resulting from the injury has so progressed as to have increased the percentage of permanent partial disability. An application for reconsideration so filed shall be heard by a staff hearing officer and his decision shall be final. No application for subsequent percentage determinations on the same claim for injury or occupational disease shall be accepted for review by the district hearing officer unless supported by substantial evidence of new and changed circumstances developing since the time of the hearing on the original or last determination." (Emphasis added.)
The principal contention advanced by appellant centers upon the medical report submitted by Dr. Arnold, a nonexamining physician, who, after analyzing Dr. Ljuboja's report, concluded as follows:
"No increase in the amount of PPI [permanent partial impairment] is warranted by the findings presented by Dr. Ljuboja. In my opinion there is no worsening of the effects of the allowed conditions."
Appellant is correct in his contention that the commission was not at liberty to consider Dr. Arnold's analysis as constituting medical evidence upon which to grant or deny benefits since, as a nonexamining physician, he did not expressly adopt the factual findings of one or more examining physicians as the basis for an opinion. See, e.g., State, ex rel. Wallace, v. Indus. Comm. (1979), 57 Ohio St.2d 55 [11 O.O.3d 216]; State, ex rel. Anderson, v. Indus. Comm. (1980), 62 Ohio St.2d 166 [16 O.O.3d 199]; State, ex rel. Teece, v. Indus. Comm. (1981), 68 Ohio St.2d 165 [22 O.O.3d 400]; State, ex rel. Paragon, v. Indus. Comm. (1983), 5 Ohio St.3d 72.
This is not to say that the commission could not seek an analysis of the medical report from Dr. Arnold to serve as guidance for its determination. However, in order to constitute a medical report upon which the commission was entitled to rely, when granting or denying benefits, the report must have expressly adopted findings revealed by an examining physician's report. Thus, the only report in the file complying with the standards set forth in Wallace, Teece and Anderson was the report of Dr. Ljuboja.
By the clear and unambiguous requirements of R.C. 4123.57(B), it is incumbent upon a party seeking an increase in his percentage of permanent partial disability to present "substantial evidence of new and changed circumstances developing since the time of the hearing on the * * * last determination." In spite of this requirement, the medical report submitted by appellant was devoid of any reference whatsoever that the medical conditions described therein represented new or changed conditions which developed since the date of the commission's prior determination in May 1982. In essence, the report is a recapitulation of the history, findings and recommendation previously submitted by Dr. Neuman, which fails to characterize the conditions as having arisen subsequent to the commission's prior review of an increase in appellant's permanent partial disability benefits.
We emphasize that the similarity between the medical reports of Drs. Neuman and Ljuboja did not, in and of itself, fatally flaw appellant's request for benefits. Thus, a claimant with a recognized injury may choose to seek an increase in permanent partial disability compensation as a result of his belief that his injury has worsened over a period of time. In the event the request for an increase in benefits is denied, the claimant is not prohibited by the provisions of R.C. 4123.57(B) from seeking similar compensation at a later date, provided, however, that the worsening condition developed since the commission's previous determination and that the application is supported by substantial evidence to that effect.
It has long been this court's view that since the writ of mandamus is an extraordinary remedy, the burden is on the relator to demonstrate a clear legal right for the issuance of the writ. State, ex rel. Pressley, v. Indus. Comm. (1967), 11 Ohio St.2d 141 [40 O.O.2d 141]; State, ex rel. Gerspacher, v. Coffinberry (1952), 157 Ohio St. 32 [47 O.O. 31]. In the case at bar, the medical evidence relied upon by appellant failed to satisfy the requirements imposed pursuant to R.C. 4123.57(B) and, as such, we conclude the commission did not abuse its discretion in denying the application for an increase in benefits.
For the foregoing reasons, the judgment of the court of appeals, denying the writ, is hereby affirmed.
Judgment affirmed.
CELEBREZZE, C.J., SWEENEY, LOCHER, HOLMES and C. BROWN, JJ., concur.
DOUGLAS and WRIGHT, JJ., concur in judgment only.