Summary
holding that for purposes of a permanent total disability determination, examining physicians are confined to the question of medical impairment, i.e., loss of anatomical and/or mental function, while the question of disability is one solely for the commission.
Summary of this case from State v. Industrial Commission of OhioOpinion
No. 88-2082
Submitted February 6, 1990 —
Decided April 25, 1990.
Workers' compensation — Determination of permanent total disability — Examining physicians should confine their opinions to the question of medical impairment — Question of disability is for commission to determine — Since disability is not a proper subject for medical reports, commission cannot justify a decision denying permanent total disability by relying entirely on a medical report.
APPEAL from the Court of Appeals for Franklin County, No. 86AP-992.
Claimant-appellant, Louise M. Woods, was injured on June 15, 1979 in the course of and arising out of her employment as a nurse's aide with appellee, St. Rita's Home for the Aged, Inc. Her workers' compensation claim was allowed for "Strained Low Back (Radiating down both Legs)." On January 18, 1985, appellant applied to appellee Industrial Commission of Ohio ("commission") for permanent total disability compensation. Her application was accompanied by a report from Drs. Elliott P. Feldman and Rixzene L. Ayers, which indicated that she was "100% disabled," and that she would never be able to return to her previous employment due to her back injury and "depression."
Appellant was examined for the commission by Dr. D.D. Kackley and Dr. H. Tom Reynolds. Dr. Kackley's report estimated appellant's "partial impairment * * * at 40-50%, representing total loss of low back reserve," and concluded that she was permanently unable to return to her former position due to the allowed injury. Dr. Reynolds, however, thought that appellant tried to exaggerate her symptoms during his examination. He stated in his report:
"* * * Based on today's examination and review of the file, it is my opinion that this claimant has an impairment that is permanent in nature, but I do not feel she has a permanent and total impairment from the allowed conditions. I do feel the exaggeration seen during today's examination does make it difficult to determine an actual level of impairment. According to the file, several people in the past have noted an underlying psychological impairment, but this is not an allowed condition. I could find no objective evidence today to substantiate her subjective findings and could find no evidence that would prevent her from returning to her previous level of employment. Based on the allowed conditions, I feel she has an impairment of 5%. I do feel she has experienced maximum recovery from her treatment. * * * As above mentioned, there were multiple inconsistencies today, and I feel she tried to exaggerate her findings. There are additional medical conditions that may preclude employment (i.e. status post myocardial infarction), but these are not allowed conditions."
At the hearing on appellant's application, the commission also had before it appellant's age (then fifty-seven), and her prior work history (twenty-five years as a nurse's aide). However, on April 17, 1986, the commission denied appellant permanent and total disability compensation. The commission's order made no mention of appellant's age or her work record, and specifically identified only Dr. Reynolds's report as the basis for its decision.
Woods challenged the commission's decision by requesting a writ of mandamus in the Court of Appeals for Franklin County, and asking that the court compel the commission to vacate its order. She argued that the commission abused its discretion because (1) no evidence supported the finding that she could engage in sustained remunerative employment, and (2) the commission did not consider and indicate in its order factors like Woods's age and employment background. See State, ex rel. Stephenson, v. Indus. Comm. (1987), 31 Ohio St.3d 167, 31 OBR 369, 509 N.E.2d 946.
The court of appeals assigned the matter to a referee who recommended that the writ of mandamus be denied. The referee found that the commission had not abused its discretion by denying permanent total disability because Dr. Reynolds's opinion on Woods's ability to return to her former position allowed the conclusion that she could engage in sustained remunerative employment. The referee also found that Stephenson, supra, did not require a limited writ of mandamus ordering the commission to consider and indicate the other factors ordinarily pertinent to a denial of permanent total disability compensation. According to the referee, these factors were irrelevant given Dr. Reynolds's opinion that Woods could return to her job. The court of appeals overruled objections to the referee's report and adopted it.
The cause is now before this court as of right.
Butler, Cincione, DiCuccio Dritz and David B. Barnhart, for appellant.
Anthony J. Celebrezze, Jr., attorney general, Michael L. Squillace and Cheryl J. Nester, for appellee Industrial Commission.
To deny a claimant's application for permanent total disability compensation, the commission must determine that the claimant is able to engage in sustained remunerative employment. State, ex rel. Jennings, v. Indus. Comm. (1982), 1 Ohio St.3d 101, 1 OBR 135, 438 N.E.2d 420. This determination requires the commission to first consider the medical evidence indicating the claimant's degree of impairment. If the medical evidence does not establish that the claimant is permanently and totally impaired, the commission must then decide the disability issue — whether the claimant's age, education, work record, or any other physical, psychological, or sociological factor forecloses the claimant's return to the work force. State, ex rel. Lawrence, v. American Lubricants Co. (1988), 40 Ohio St.3d 321, 322, 533 N.E.2d 344, 346, following State, ex rel. Stephenson, v. Indus. Comm. (1987), 31 Ohio St.3d 167, 31 OBR 369, 509 N.E.2d 946.
The court of appeals held that the factors set forth in Stephenson were irrelevant to appellant's application for permanent total disability compensation due to Dr. Reynolds's opinion that she could return to her former job despite her back injury. According to the court, this opinion allowed the commission to conclude that appellant was able to engage in sustained remunerative employment without considering any possible effect of appellant's age and work record on her capacity to work generally. We disagree.
Lawrence, supra, holds that the commission cannot declare a partially impaired claimant able to engage in sustained remunerative employment unless it considers evidence of the Stephenson factors and causes its order to reflect this consideration. Lawrence plainly establishes these factors as the foundation for the ultimate determination that must be made before an application for permanent total disability compensation is denied. Thus, contrary to the court of appeals' holding, evidence of the Stephenson factors is never completely irrelevant where, as here, the claimant is not permanently and totally impaired.
Furthermore, we have said that for the purpose of a permanent total disability determination, examining physicians should confine their opinions to the question of medical impairment ( i.e., "the amount of a claimant's anatomical and/or mental loss of function" caused by an allowed injury, Stephenson, supra, at 171, 31 OBR at 373, 509 N.E.2d at 950), and that the question of disability ( i.e., "the effect that the physical impairment has on the claimant's ability to work," id.) is for the commission to determine. Lawrence, supra, at 322, 533 N.E.2d at 346. Nevertheless, the commission determined in this case that appellant was able to return to her former place of employment, and therefore able to engage in sustained remunerative employment solely because of medical evidence. However, since disability is not a proper subject for medical reports, it follows that the commission cannot justify a decision denying permanent total disability by relying entirely on a medical report.
For these reasons, we hold that the commission was required to consider the Stephenson factors present in this record and to indicate such consideration in its order. Accordingly, the court of appeals decision is reversed and the commission is ordered to vacate its denial of appellant's application for compensation for permanent and total disability, and to proceed with her claim in accordance with this opinion.
Judgment accordingly.
MOYER, C.J., SWEENEY, HOLMES, DOUGLAS, WRIGHT, H. BROWN and RESNICK, JJ., concur.