Summary
In Firestone, the commission determined that the conclusions in these reports resulted solely from allowed conditions and, therefore, that the depositions were unnecessary.
Summary of this case from State ex Rel. v. Firestone TireOpinion
No. 88-1308
Submitted October 17, 1989 —
Decided December 13, 1989.
Workers' compensation — Application for permanent total disability benefits — Request to depose examining physician may be denied, when.
APPEAL from the Court of Appeals for Franklin County, No. 86AP-1030.
Appellant-claimant ("claimant"), Charles Yancey, was injured while in the course of and arising from his employment with appellee, Firestone Tire Rubber Company. His workers' compensation claim has been recognized for contusion to the head, cervical strain, cervical radiculitis, post-traumatic headaches, post-traumatic stress disorder and aggravation of pre-existing neurosis. Claimant, a diabetic, is also blind and has had parts of each foot amputated. These conditions are unrelated to his industrial injury.
In 1985, claimant applied for permanent total disability compensation. Accompanying his application was a report from his attending psychiatrist, Dr. Maximilien Menassa, who certified claimant as being permanently and totally disabled.
Claimant was also examined by Industrial Commission ("commission") specialists, Drs. David Aronson and John Frenz. Dr. Aronson stated that he did not believe the claimant would ever be able to return to work. He found a thirty-percent disability due to the emotional component of the work-related accident.
Dr. Frenz also found claimant incapable of sustained remunerative employment. He evaluated claimant's physical condition only and his report referred to claimant's allowed and nonallowed conditions. Dr. Frenz ultimately concluded that:
"This claimant has indeed sustained impairments per this claim which renders [ sic] him permanently and totally disabled from sustained remunerative employment to a degree of 100%; this is exclusive of his other unrelated medical problems and disabilities."
Based on these reports, a combined-effects review performed by the commission's Dr. Robert Rosen also concluded that claimant was incapable of sustained remunerative employment.
Appellee moved to depose Drs. Frenz and Rosen, alleging that Dr. Frenz considered nonallowed conditions in calculating claimant's impairment. A commission district hearing officer denied the deposition request, concluding that:
"The examining physicians based their estimates of disability only upon those conditions for which this claim has been allowed." This order was administratively affirmed.
Appellee filed a complaint in mandamus in the Court of Appeals for Franklin County alleging that the commission abused its discretion in denying the depositions. The appellate court agreed, in part, finding that:
"* * * Although Dr. Frenz concluded his report with the statement that claimant was one hundred percent permanently and totally disabled due to the allowed conditions alone, this court nevertheless is compelled to conclude that the report on its face considered nonallowed conditions in computing the percentage of claimant's disability. * * *"
The court granted appellee's request to depose Dr. Frenz only, finding that Dr. Rosen's deposition would serve no additional purpose beyond that served by deposing Dr. Frenz.
This cause is now before this court upon an appeal as of right.
Buckingham, Doolittle Burroughs, Timothy C. Campbell and Eleanor J. Tschugunov, for appellee.
Anthony J. Celebrezze, Jr., attorney general, and Isabella Dixon, for appellant Industrial Commission.
Michael J. Muldoon, for appellant Yancey.
Subject to commission approval, a claimant or employer may depose a physician who has reported on the claimant's extent of disability. R.C. 4123.09. This discretionary approval is based on the reasonableness of the movant's request. Ohio Adm. Code 4121-3-09 (B)(5)(d).
We have addressed this subject on two previous occasions. Upon review, we conclude that our decisions in State, ex rel. General Motors Corp., v. Indus. Comm. (1976), 47 Ohio St.2d 244, 1 O.O. 3d 141, 351 N.E.2d 442, and Williams v. Moody's of Dayton, Inc. (1982), 1 Ohio St.3d 238, 1 OBR 260, 438 N.E.2d 1162, require employers to meet more stringent deposition criteria than do claimants. Under Williams, a claimant need only show that a substantial disparity exists between various medical reports and that the commission relied on one of those reports to the exclusion of others. Under State, ex rel. General Motors Corp., supra, however, an employer must additionally demonstrate that the relied-upon reports considered nonallowed conditions. The commission has never been required to rely on all the evidence before it — it need only consider it. Moreover, any commission failure in this regard will not be cured by a physician deposition.
The present controversy centers on Dr. Frenz's reference to nonallowed conditions. The commission argues that it reviewed the report and found that the doctor's conclusion was based solely on the allowed injuries. The commission contends that its finding is supported by "some evidence" and thus is not subject to correction in mandamus. State, ex rel. Burley, v. Coil Packing, Inc. (1987), 31 Ohio St.3d 18, 31 OBR 70, 508 N.E.2d 936. Appellee, on the other hand, contends that the question is not whether the reviewing physician actually relied on nonrecognized conditions, but whether there was reasonable cause to believe that he or she did so. This contention is unpersuasive.
Neither General Motors nor Williams, supra, expressly or inferentially refers to a "reasonable cause" standard. Such a standard was unnecessary in General Motors since it was clear that nonallowed conditions were considered, substantial disparity existed and certain reports were not considered. Similarly, in Williams, we specifically found that substantial disparity and exclusionary reliance did exist, not that they may have existed.
In reviewing the record for "some evidence" to support the commission's order, we find that, contrary to the court of appeals' suggestion, Dr. Frenz did discuss the allowed conditions. He found practically no cervical spine motion and referred to his "detailed review" of claimant's cervical X-rays, noting spur formation at C5-6. Most persuasive, however, is his conclusion that:
"This claimant has indeed sustained impairments per this claim which renders [ sic] him permanently and totally disabled from sustained remunerative employment to a degree of 100%; this is exclusive of his other unrelated medical problems and disabilities." (Emphasis added.)
In reviewing claimant's medical history, Dr. Frenz unquestionably discussed nonallowed conditions. However, we find mere discussion insufficient to support the appellate court's conclusion that Dr. Frenz's finding on disability was improperly based on nonrecognized conditions, especially when the doctor specified otherwise. We thus find "some evidence" supporting the commission's decision.
Accordingly, we reverse that portion of the appellate court judgment which orders the commission to permit appellee to depose Dr. Frenz. We affirm that portion which denies Dr. Rosen's deposition.
Judgment reversed in part and affirmed in part.
MOYER, C.J., SWEENEY, WRIGHT, H. BROWN and RESNICK, JJ., concur.
HOLMES and DOUGLAS, JJ., concur in judgment only.