Opinion
No. 88-607
Submitted March 7, 1989 —
Decided May 10, 1989.
Workers' compensation — Claim for permanent total disability — Remand to commission for consideration of Stephenson factors upheld, when.
APPEAL from the Court of Appeals for Franklin County, No. 86AP-1112.
Appellee-claimant ("claimant"), John Huntley, was injured in 1968 while in the course of and arising from his employment with appellant. His workers' compensation claim was originally allowed for "lumbosacral sprain" and subsequently amended to include "reactive depression."
On November 7, 1984, claimant filed an application for permanent total disability compensation. On his application, claimant indicated that he was fifty-six years old, had an eighth grade education with no special vocational training or skills, and had always worked as a laborer. Accompanying the application were the reports of Drs. Joseph Mann and David K. Scheer, both of whom found claimant to be permanently and totally disabled.
Claimant was psychologically examined on the commission's behalf by Dr. Wayne J. Graves, who found claimant to have a permanent psychiatric impairment of fifty-five to seventy percent. Commission orthopedist Dr. F.B. Hawkins found a fifteen-percent permanent physical impairment.
A combined-effects review was subsequently performed by Dr. Allen James, Jr. In addition to addressing significant mental and physical findings observed by numerous examining physicians, Dr. James' report also commented on claimant's age, education, and illiteracy. Dr. James found a thirty-six percent combined-effects permanent partial impairment and stated that "* * * current medical evidence in this file does not support an opinion for permanent and total disability for the nature of the injury stated above." The Industrial Commission denied claimant's application "based on the * * * medical * * * [report of] Dr. James[.]"
Claimant filed a complaint for a writ of mandamus in the Court of Appeals for Franklin County, alleging an abuse of discretion by the commission in denying his application for permanent and total disability, and seeking to vacate the commission's order and to grant him the requested compensation. The appellate court granted a limited writ ordering the commission to vacate its order and to redetermine the question of permanent total disability in accordance with the standard set forth in State, ex rel. Stephenson, v. Indus. Comm. (1987), 31 Ohio St.3d 167, 31 OBR 369, 509 N.E.2d 946.
The cause is now before this court upon an appeal as a matter of right.
Gallon, Kalniz Iorio Co., L.P.A., and William R. Menacher, for appellee.
Fuller Henry and Richard S. Baker, for appellant.
State, ex rel. Stephenson, v. Indus. Comm., supra, in addressing permanent total disability determinations, held that "* * * [t]he commission must also review any evidence relative to the claimant's age, education, work record, psychological or psychiatric factors if present, and that of a sociological nature." Id. at 170, 31 OBR at 372, 509 N.E.2d at 950. In so holding, it reiterated a fundamental concept first stated in Meeks v. Ohio Brass Co. (1984), 10 Ohio St.3d 147, 10 OBR 482, 462 N.E.2d 389, that "disability" determinations rest exclusively with the commission. Stephenson additionally remanded a commission order that failed to indicate that these factors were considered.
The commission order currently at issue did not expressly indicate consideration of nonmedical factors. Appellant argues that because Dr. James' report referred to several nonmedical disability factors, the commission implicitly considered those factors by relying on that report. We find this contention unpersuasive.
Appellant's proposition erroneously presumes that implicit consideration is acceptable under Stephenson. The decision's language, however, suggests that its purpose, in large part, was to eliminate speculation as to whether the commission examined these factors. As stated therein:
"Perhaps these factors were considered by the commission, but because we find no indication in the commission's order that such factors were considered by the commission in reaching its decision on the percentage of permanent total disability of appellee * * * we * * * remand this cause to the commission for consideration of said factors, if previous consideration had not been given, and an amended order stating the commission's findings after such consideration." Id. at 173, 31 OBR at 374, 509 N.E.2d at 951.
Moreover, our recent decisions in State, ex rel. Swan, v. Midland Indus. Elec. Co. (1988), 36 Ohio St.3d 53, 521 N.E.2d 787, and State, ex rel. Adkins, v. Spears (1988), 36 Ohio St.3d 54, 521 N.E.2d 788, interpreted a Stephenson remand as requiring "an amended order identifying which of the above Stephensonfactors were considered in its findings after such consideration." (Emphasis added.) Swan, supra, at 54, 521 N.E.2d at 788. State, ex rel. Lawrence, v. American Lubricants Co. (1988), 40 Ohio St.3d 321,322, 533 N.E.2d 344, 346, determined that "the commission erred in failing to consider, or to state whether it considered, nonmedical disability factors." (Emphasis added.) State, ex rel. Bouchonville, v. Indus. Comm. (1988), 36 Ohio St.3d 50, 52, 521 N.E.2d 773, 775, which mandated consideration of Stephenson factors in permanent partial disability cases, interpreted Stephenson as follows: "An exhaustive discussion is not required; it is enough that there is an indication that the commission considered such factors."
Appellant is correct in noting that the commission alone is responsible for evaluating the weight and credibility of the evidence before it. However, appellant's allegation that Stephenson is irreconcilable with the "some evidence" requirement of State, ex rel. Burley, v. Coil Packing, Inc. (1987), 31 Ohio St.3d 18, 31 OBR 70, 508 N.E.2d 936, is without merit. Appellant's argument is wrongly premised on the belief that Dr. James' opinion as to disability, since it arguably encompassed consideration of age, education, etc., is "some evidence" supporting the commission's decision. Appellant ignores that the determination of "disability" rests exclusively with the commission. Dr. James' opinion as to disability is thus without evidentiary value. Stephenson and Burley are not mutually exclusive — both must be complied with in dealing with permanent total disability determinations.
Accordingly, the judgment of the appellate court is affirmed.
Judgment affirmed.
MOYER, C.J., SWEENEY, HOLMES, DOUGLAS, WRIGHT, H. BROWN and RESNICK, JJ., concur.