Summary
In Wallace, the commission determined that the claimant was not totally and permanently disabled based upon the opinion of a physician who examined only the claimant's medical file as part of the peer review process required of the commission.
Summary of this case from State, ex Rel. Rouch v. Eagle Tool Machine Co.Opinion
No. 78-298
Decided March 14, 1979.
Workers' compensation — Determination of disability — Physician's report not considered evidence, when — Mandamus remedy available.
APPEAL from the Court of Appeals for Franklin County.
On October 24, 1966, while in the course of his employment with the Joseph T. Ryerson Son, Inc., Willie E. Wallace, appellant herein, suffered a contusion and sprain of the right wrist area. Subsequent to the wrist injury, a ganglion formed which required surgery on three occasions including October 1967, July 1968, and May 1970.
In addition, appellant developed neurological and vascular impairment of the right upper extremity as a result of the initial injury to the wrist. To correct that problem surgery was again performed in April 1971 to re-establish proper circulation in the right arm.
Appellant filed a claim with the Bureau of Workers' Compensation which was originally allowed for a "contusion and sprain, right wrist with ganglion formation dorsal aspect corpal area." However, as a result of the surgery in April 1971, a right clavicle spur developed, and his claim was amended to include the right shoulder bone spur on July 13, 1973. In August of 1973, appellant underwent surgery for the removal of the bone spur.
Despite the numerous surgical operations appellant continued to suffer pain and discomfort in his right upper extremity. In May 1975, he filed a motion with the Industrial Commission requesting a determination that he be classified as permanently and totally disabled. In support of that motion he submitted the report of an orthopedic specialist, Dr. Irvin Warth, M.D. Dr. Warth had personally examined appellant on April 10, 1975, and concluded:
"In view of the patient's age * * * being right-handed and inability to do anything with his right arm, in all probability I believe patient will never be able to return to gainful employ and should be declared permanent-totally disabled."
Subsequently, at the request of the Industrial Commission, appellant was examined by Dr. Donald N. Berning, M.D., who came to a similar conclusion concerning the extent of his disability:
"* * * He was completely sincere and in this observer's opinion has the basis for permanent and total disability. I do not see how he would be suitable for any sustained, remunerative industrial activity because unfortunately he is not with much use of his right upper extremity and there is no prospect whatever for any improvement. His injury goes back almost 10 years at the time of this dictation and, as indicated, he has had everything reasonable which might have been done. In conclusion, a permanent total disability."
In the fall of 1976, the commission referred appellant to the Bureau of Vocational Rehabilitation for an evaluation of his injury. Dr. Emily R. Hess, M.D., Director of Rehabilitation Medicine at Good Samaritan Hospital, examined appellant and on November 29, 1976, rendered the following opinion:
"* * * The hand is quite painful to touch so is the arm and so is the scarred area. I agree definitely with the opinion that this is a reflex dystrophy and that everything possible has been done surgically to relieve his problem. I also agree that he is permanently and totally disabled since this is his dominant upper extremity. He could do no physical work other than something which could be done very easily with his non-dominant extremity and these types of jobs are exceedingly rare in competitive industry."
Responding to that conclusion the Bureau of Vocational Rehabilitation determined that appellant was not a viable candidate for rehabilitation and that attempts to alleviate his pain were all that was feasible.
As a result of the foregoing, on December 21, 1976, an attorney-examiner for the commission recommended "[t]hat the Commission find from proof of record that the claimant is permanently and totally disabled."
As a result of a hearing before the commission, appellant was referred to Dr. Davies of the Industrial Commission Medical Section for "review and report." After an examination of appellant's file the doctor issued his report on February 24, 1977, which indicated:
"* * * If only the recognized conditions are considered, the claimant is not permanently and totally disabled. The only conditions recognized are:
"1. Contusion and sprain, right wrist with a ganglion.
"2. Right shoulder bone spur." (Emphasis added.)
Based on that conclusion the members of the commission issued their own finding on March 15, 1977, that appellant was not totally and permanently disabled.
Appellant challenged that finding in the Court of Appeals by way of a complaint in mandamus filed on August 16, 1977. Appellee filed a motion for summary judgment which was sustained on January 10, 1978, and the writ was denied.
The cause is now before the court upon an appeal as of right.
White, Getgey Meyer Co., L.P.A., and Ms. Dianne L. Blocker, for appellant.
Mr. William J. Brown, attorney general, and Mr. Solomon Hertzel Basch, for appellee.
The essence of the appellant's argument is that the medical opinion of Dr. Davies is not "evidence" upon which the commission could base its determination that he is not totally and permanently disabled. Consequently, if that opinion is disregarded all that remains in the record is evidence which supports a finding of such disability.
This court has held on numerous occasions that mandamus will not lie where there is some evidence to support the finding of the Industrial Commission. See, e. g., State, ex rel. Mees, v. Indus. Comm. (1972), 29 Ohio St.2d 128; State, ex rel. Ruggles, v. Stebbins (1975), 41 Ohio St.2d 228. However, where there is no evidence upon which the commission could have based its factual conclusion an abuse of discretion is present and mandamus becomes appropriate. State, ex rel. Hutton, v. Indus. Comm. (1972), 29 Ohio St.2d 9.
In response to R.C. 4121.38, the Industrial Commission has established a Medical Section which may be called upon to review a claimant's medical files in the process of determining the extent of his disability. Pursuant to that legislative mandate appellant's file was referred to Dr. Davies for such a review. The sole basis upon which the doctor was to form a medical opinion were the findings of the other physicians who had personally examined appellant. No physical examination was to be conducted. As indicated previously, Dr. Davies issued an opinion that if only appellant's "recognized conditions" are considered, a finding of total and permanent disability is not warranted.
R.C. 4121.38 reads, in pertinent part:
"(A) The industrial commission shall maintain a medical section under direct commission control to serve both the industrial commission and the bureau of workers' compensation and shall provide for its management.
"(B) The medical section shall:
"* * *
"(3) Develop a method of peer review of medical reports prepared by the commission referral doctors."
In light of the frequent use of medical opinions of non-examining physicians in processing claims for disability compensation, the Court of Appeals for Franklin County has developed an analogy that is employed to insure the reliability of those opinions. The court considers the physician's opinion tantamount to a response to a hypothetical question.
Applying the analogy to a hypothetical question, it follows that the non-examining physician is required to expressly accept all the findings of the examining physicians, but not the opinion drawn therefrom. If a non-examining physician fails to accept the findings of the doctors or assumes the role of the Industrial Commission, the medical opinion that is rendered does not constitute evidence to support a subsequent order of the commission.
State, ex rel. Mary C. Adams, v. Indus. Comm., Franklin Co., Nov. 29, 1977, No. 77 AP-345, unreported.
State, ex rel. Fannie Watts, v. Indus. Comm., Franklin Co., Dec. 27, 1977, No. 77 AP-314, unreported.
As long as non-examining physicians are utilized by the commission fundamental notions of fairness and evidentiary reliability support the analogy drawn by the Court of Appeals. The use of such a procedure would operate impartially to aid the commission in coming to its final conclusion concerning the extent of disability.
The court is aware that the Industrial Commission is not bound by technical rules of evidence pursuant to R.C. 4123.10. However, the analogy employed by the Court of Appeals appears consistent with the duty of the commission mandated by that same statute to "ascertain the substantial rights of the parties and carry out justly the spirit" of the Workers' Compensation Laws.
In the present proceeding the Court of Appeals initially found that the medical opinion of Dr. Davies did not indicate that appellant was not totally and permanently disabled. However, it went on to hold that the same opinion constituted "some evidence" upon which the commission could base its order denying appellant's motion for total and permanent disability. We disagree.
Dr. Davies' opinion makes no express reference to the findings of any of the three examining physicians. Furthermore, there is no indication that he accepted all those findings as a necessary prerequisite to rendering his own opinion.
While Dr. Davies could have disagreed with the opinions of those physicians as to whether appellant's condition could improve, or whether he was a viable candidate for rehabilitation, he cannot ignore the full extent of the factual foundation presented to him. By restricting his scrutiny solely to the appellant's "recognized" conditions, various other findings of the examining physicians were overlooked. These include, for example, the observation that appellant was in substantial pain, that he had no practical use of his dominant upper extremity, that he had a type of reflex sympathetic dystrophy, and that he probably originally injured his brachial plexus involving the autonomic nerve system.
Each of these findings was noted in the reports of either Dr. Hess or Dr. Berning.
Rather than expressly accepting and referring to these findings, the opinion of Dr. Davies is akin to a legal conclusion that only the specific terminology utilized in appellant's original claim, as amended, can be considered in ascertaining the extent of disability. Further complications relating to these initially "recognized" conditions cannot be so summarily ignored. See State, ex rel. International Harvester Co., v. Indus. Comm. (1975), 43 Ohio St.2d 40.
In conclusion, because the medical opinion of Dr. Davies in no way reflects that it accepts and is based upon all the factual findings of the physicians who examined appellant, as well as being tantamount to an incorrect legal conclusion, it cannot, by itself, be considered evidence upon which the commission could base its final order. Accordingly, the judgment of the Court of Appeals must be reversed.
Judgment reversed.
CELEBREZZE, C.J., HERBERT, SWEENEY, LOCHER and PATTON, JJ., concur.
W. BROWN and P. BROWN, JJ., dissent.
PATTON, J., of the Eighth Appellate District, sitting for HOLMES, J.