Summary
In Cordray, the commission held claimant's permanent total disability compensation motion in abeyance in order to secure a commission specialist's exam. During the abeyance period, claimant submitted a vocational report.
Summary of this case from State ex Rel. Roy v. Indus. CommOpinion
No. 89-1160
Submitted July 31, 1990 —
Decided October 17, 1990.
Workers' compensation — Application for permanent total disability compensation — Commission has discretion to accept or reject evidence submitted after hearing.
APPEAL from the Court of Appeals for Franklin County, No. 88AP-707.
Appellant, George R. Cordray, sought permanent total disability compensation in 1984 for injuries sustained in the course of and arising from his employment with J. Topy Sons, Inc. Accompanying his motion were reports from Drs. Thomas H. Brewer and Robert R. Hershner. The Industrial Commission's specialist, Dr. John R. Schwarzell, examined appellant and concluded that appellant could perform sustained remunerative employment.
The commission's legal staff prepared for the commission's review a statement of facts that discussed medical data in appellant's claim file. Appellant later submitted a report from Dr. George Barnett that indicated that appellant was medically unable to return to his former position of employment. Barnett did not address the effect of appellant's medical impairment on his ability to perform sustained remunerative employment. He did, however, state that given appellant's limited education, gainful employment was remote. A supplemental statement of facts from the commission's staff followed. It referred to nonmedical factors but did not discuss Barnett's report.
Appellant's application for compensation for permanent total disability was heard in late March 1988. Appellant unsuccessfully sought a continuance, claiming that he was securing a vocational evaluation. After the hearing, the commission held its decision in abeyance and referred appellant to its specialist, Dr. Piero, for an updated medical exam. Dr. Piero also concluded that appellant could engage in sustained remunerative employment.
On May 5, 1988 appellant submitted the report of vocational consultant Steven Rosenthal, who opined that appellant's work history and physical restrictions precluded sustained gainful employment. On May 25, 1988 the commission issued an order denying compensation for permanent total disability that stated, in part:
"The medical reports of Drs. Brewer, Schwarzell and Piero were reviewed and evaluated. The finding and order are based particularly on the medical reports of Dr. Schwarzell and Piero, a consideration of the claimant's age, education, work record and all other factors including physical, psychological, and sociological, that are contained in the statement of facts prepared for the hearing on the instant Application, the evidence in the file and the evidence adduced at the hearing."
Appellant filed a complaint in mandamus in the Court of Appeals for Franklin County, alleging that the commission had not considered the Rosenthal and Barnett reports and had thus abused its discretion. The court disagreed and denied the writ.
This cause is before this court as a matter of right.
Cox Cox and Edward J. Cox, Sr., for appellant.
Anthony J. Celebrezze, Jr., attorney general, and Jeffery W. Clark, for appellee.
The commission does not dispute appellant's claim that the Rosenthal and Barnett reports were not considered. Appellant claims this omission constitutes either an abuse of discretion or a denial of due process. For the following reasons, we affirm the court of appeals' decision.
Appellant's due process allegation may be quickly disposed of since it was not raised below. State, ex rel. Gibson, v. Indus. Comm. (1988), 39 Ohio St.3d 319, 530 N.E.2d 916. Appellant unpersuasively responds that the constitutional claims could not have been raised previously. The alleged violations, however, appeared when the commission's order, not the appellate opinion, was issued. Appellant could thus have made his argument below.
As to the claim of abuse of discretion, the commission argues that appellant has not established that the commission had a clear legal duty to review the Rosenthal report. The commission stresses that appellant applied for compensation for permanent total disability in 1984, yet waited four years to get a vocational evaluation. Even then, appellant did not submit the report until one month after the hearing.
There is no statute or rule that specifically requires that all proof be presented prior to or at hearing. Ohio Adm. Code 4121-3-09(C)(5), however, provides:
"At hearings with notice, consideration shall be confined to the issues presented in the adjudication of the claim and the parties shall be prepared to fully present their respective positions in regard to such issues. If it appears that the parties are inadequately prepared to present facts bearing upon the issues in the claim, the hearing officer may continue the claim to the end of the hearing docket or to a specific future date with instructions to the parties or their representatives to properly prepare the presentation of their respective positions." (Emphasis added.) See, also, Ohio Adm. Code 4121-2-01(A)(2).
Rather than support a claim of clear legal right, these sections suggest the opposite. Having the discretion to grant or deny additional time for hearing preparation, the commission must also have the discretion to accept or reject evidence submitted thereafter.
Appellant argues that the commission may not ignore Rosenthal's report because of its posthearing submission, and yet consider Dr. Piero's posthearing report. This contention is unpersuasive. Dr. Piero examined appellant at the commission's request. Ohio Adm. Code 4121-3-09(B)(3) states:
"The bureau, board or commission may, at any point in the processing of an application for benefits, require the employee to submit to a physical examination * * *." (Emphasis added.)
Since the commission may refer a claimant for examination at any time, the commission may consider the report generated therefrom, regardless of when it is obtained. We thus find that the commission had no clear legal duty to consider Rosenthal's report.
Turning to Dr. Barnett's report, we affirm the appellate court's decision to forgo ordering additional consideration, but do so for reasons other than those cited below. The court reasoned:
"* * * [T]he report of Dr. Barnett only very briefly and conclusively addressed one of the Stephenson factors. [ State, ex rel. Stephenson, v. Indus. Comm. (1987), 31 Ohio St.3d 167, 31 OBR 369, 509 N.E.2d 946.] Indeed his mention of relator's limited education adds nothing to the statement of facts which, pursuant to the commission's order, the commission considered * * *. * * *"
Stephenson identifies certain nonmedical factors such as age, education, etc., that must be considered in determining permanent total disability. The appellate court implied that had Dr. Barnett discussed the Stephenson factors more thoroughly, a writ of mandamus ordering further consideration would have been appropriate. This is incorrect.
In State, ex rel. Lawrence, v. American Lubricants Co. (1988), 40 Ohio St.3d 321, 533 N.E.2d 344, we directed physicians to confine their opinions to medical impairment, not disability. When stripped of its disability discussion, Dr. Barnett's report does not indicate that appellant's allowed conditions preclude sustained remunerative employment. We thus find it unnecessary to order the commission to consider additional evidence that does not contradict the commission's original conclusion.
Accordingly, the judgment of the appellate court is affirmed.
Judgment affirmed.
MOYER, C.J., SWEENEY, HOLMES, DOUGLAS, WRIGHT, H. BROWN and RESNICK, JJ., concur.