Summary
In Kokocinski the claimant was a lady sixty-three years of age with little education or job skills, who at the time of the injury was working as a janitress, i.e., unskilled manual labor.
Summary of this case from State, ex Rel. Stephenson, v. Indus. CommOpinion
No. 83-1476
Decided June 20, 1984.
Workers' compensation — Permanent and total disability benefits awarded, when.
IN MANDAMUS.
Adeline Kokocinski, relator, was injured in the course and scope of her employment with respondent Toledo Building Services on March 27, 1979, when she fell over a box and fractured her right shoulder. She was hospitalized for a period of time during which surgery was performed. She was sixty-one years old at the time of the injury.
Relator filed a workers' compensation claim which was allowed for a fractured right shoulder. She was awarded temporary total disability benefits for the period during which she was unable to return to work. In January 1980 she returned to work, but, finding that she was unable to perform her work satisfactorily, she took an early retirement in June 1980 at the age of sixty-two.
On August 11, 1980 relator was examined by Dr. Thomas J. Williams, D.O. He concluded that she was permanently and totally disabled. On August 19, 1980 relator filed a motion with the Industrial Commission ("commission") requesting that she be found permanently and totally disabled. Dr. Williams' report was attached to the motion in support of her claim.
On September 17, 1980 relator was examined by Dr. W.J. McCloud, M.D. Dr. McCloud concluded that relator had "essentially loss [ sic] usefulness of her right upper extremity." He stated that he could not "elaborate whether or not she is capable of performing those activities one expects a janitress to perform," but nevertheless concluded that she was not permanently and totally disabled. He estimated her percentage of permanent partial impairment to be sixty percent.
Following a hearing on February 17, 1981, the commission denied relator's motion finding that she was not permanently and totally disabled. Relator did not appeal from this decision.
On October 15, 1981 relator filed an application for determination of permanent partial disability. Her application was allowed on the evidence of record. By order dated December 12, 1981 the commission found relator to be sixty percent permanently partially disabled.
On February 17, 1982 relator filed a second motion requesting that she be found permanently and totally disabled. She again submitted the report of Dr. Williams in support of her motion. Relator was examined by Dr. Robert F. Cooke, M.D., on April 29, 1982. Dr. Cooke reported that relator suffered from a disability of "at least 75%."
Counsel for relator deposed Dr. Cooke on November 9, 1982. During the course of the deposition, the following dialogue took place:
"Q. Doctor [Cooke], on the basis of permanent total disability, which, as you know, is an administrative function, and separate from a hundred percent medically impaired, do you believe the Claimant is one hundred percent permanently and totally disabled?
"A. Yes, I do."
The deposition was submitted to the commission on relator's behalf. Following a hearing on February 17, 1983 the commission found, by order mailed to the parties on June 14, 1983, that relator was not permanently and totally disabled. Relator filed an action in mandamus in this court seeking to vacate the order of the commission and to grant relator's motion.
Messrs. Wagoner, Steinberg, Chinnis Dorf and Mr. Michael D. Dorf, for relator.
Mr. Anthony J. Celebrezze, Jr., attorney general, Mr. Lee M. Smith and Mr. Richard C. Slavin, for respondent Industrial Commission.
Messrs. Spengler, Nathanson, Heyman, McCarthy Durfee, Mr. James P. Triona and Mr. James M. Sciarini, for respondent Toledo Building Services Co.
It is well-settled that "the determination of disputed factual situations is within the final jurisdiction of the Industrial Commission, and subject to correction by action in mandamus only upon a showing of abuse of discretion." State, ex rel. Haines, v. Indus. Comm. (1972), 29 Ohio St.2d 15, 16 [58 O.O.2d 70]. Furthermore, "where the record contains some evidence to support the commission's factual findings, these findings will not be disturbed." State, ex rel. Humble, v. Mark Concepts, Inc. (1979), 60 Ohio St.2d 77 [14 O.O.3d 275]. Conversely, "[w]here 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. Kramer, v. Indus. Comm. (1979), 59 Ohio St.2d 39, 42 [13 O.O.3d 30].
Relator argues that the commission abused its discretion when, based upon the facts of record, it found relator not to be permanently and totally disabled. We agree.
Respondents argue that the reports of Drs. Cooke and McCloud provide evidence in support of the commission's order and that the order should therefore not be disturbed. In State, ex rel. Jennings, v. Indus. Comm. (1982), 1 Ohio St.3d 101, 102, this court held that "where a medical expert has, by deposition testimony, repudiated a conclusion previously made in a medical report, that report cannot constitute evidence to support the order of the commission."
Respondents contend that Dr. Cooke merely "clarified" his earlier opinion by distinguishing between the terms of "impairment" and "disability." Further, respondents argue that Dr. Cooke is not competent to draw administrative conclusions such as how much disability results from a certain amount of physical impairment.
Although the Medical Examination Manual issued by the commission on October 5, 1981 does distinguish between determinations of extent of "impairment," which are medical in nature, and determinations of extent of "disability," which are administrative in nature, it should be noted that in the instant case doctors' reports containing an opinion as to extent of relator's disability, including that submitted by Dr. McCloud in the instant case, have been referred to and relied upon. In addition, a review of the transcript of Dr. Cooke's deposition clearly bears out relator's contention that Dr. Cooke repudiated his earlier report. His report therefore cannot constitute evidence to support the order of the commission. State, ex rel. Jennings, v. Indus. Comm., supra. The application of the rule in Jennings, however, does not dispose of the instant case. In Jennings, "there was no evidence but the repudiated report * * * to support the order of the commission * * *." Id. at 103. In the instant case, the claimant's file also contained the report of Dr. McCloud.
Dr. McCloud, taking note of relator's lack of education and vocational training, estimated that she would have difficulty finding work other than that which she was doing prior to her injury, i.e., unskilled manual labor. He also reported that the loss of strength and range of motion would limit "any activity wherein the hand is required to be positioned in front of oneself doing any activity." In spite of Dr. McCloud's conclusion to the contrary, these findings demonstrate that relator's disability has effectively prevented her from returning to her former position of employment. This court has consistently required that determinations of disability be based on a claimant's ability to return to the type of work for which he or she is qualified. See State, ex rel. Ramirez, v. Indus. Comm. (1982), 69 Ohio St.2d 630 [23 O.O.3d 518].
The respondents argue that Dr. Williams' report, inasmuch as it was effectively rejected in the commission's order denying relator's first motion, could not constitute evidence to support a second, identical motion. Dr. Williams' report, although somewhat remote in time, was relevant and admissible in that it tended to prove an element of an ultimate fact. See State, ex rel. Teece, v. Indus. Comm. (1981), 68 Ohio St.2d 165, 168 [22 O.O.3d 400], citing Fox v. Indus. Comm. (1955), 162 Ohio St. 569, 577 [55 O.O. 472].
The facts of the case are clear. Relator's educational and vocational background limits her employment opportunities to those involving unskilled manual labor. Her injury effectively prevents her from performing those types of activities. There was no evidence upon which the commission could have determined otherwise. Accordingly, the writ prayed for is allowed.
Writ allowed.
CELEBREZZE, C.J., SWEENEY, LOCHER, C. BROWN and J.P. CELEBREZZE, JJ., concur.
HOLMES, J., concurs in judgment only.
W. BROWN, J., dissents.