Opinion
No. 81-1228
Decided June 23, 1982.
Workers' compensation — Determination of permanent partial disability — Commission's finding — Supported by evidence, when.
APPEAL from the Court of Appeals for Franklin County.
Mary Falcone (claimant) was injured when her feet were caught under the load of a lift truck in the course of her employment with appellant, Questor Corporation, Evenflo Division. Her workers' compensation claim was allowed for ligamentous strain of both feet and legs. The claimant was also suffering from other disabilities not related to her industrial claim.
In 1979, the claimant filed an Application for the Determination of the Percentage of Permanent Partial Disability. At the request of the Industrial Commission, the claimant was examined by Anthony M. Dominic, D.O., of the commission's Medical Section. His opinion that the claimant had a permanent partial disability of eight percent was rejected by the district hearing officer because Dr. Dominic had considered the condition of "cervical and lumbar myofascitis, [and] ligamentous strain of the left shoulder," which were not recognized in the industrial claim.
The claimant was then examined by Robert C. Erwin, D.O., of the commission's Medical Section. Dr. Erwin's report recognized that the claim was allowed only for ligamentous strain of both feet and legs, and concluded that the claimant had a permanent partial disability of 14 percent as a result of the allowed conditions.
At the request of appellant, the claimant was examined by Dr. Kent L. Brown, M.D., who concluded that the claimant had a permanent partial disability of three to four percent as a result of the allowed conditions.
The district hearing officer entered an order finding the claimant to have a permanent partial disability of 14 percent based solely on the medical report of Dr. Erwin. Applications for reconsideration filed by the claimant and the employer were denied by the commission's staff hearing officer.
Appellant then instituted this action in mandamus in the Court of Appeals for Franklin County, requesting that the commission be compelled to enter an order finding the claimant to have a permanent partial disability of four percent. The Court of Appeals denied the writ and the cause is now before this court upon an appeal as of right.
Messrs. Schwartz, Einhart Simerka and Mr. Gregory P. Szuter, for appellant.
Mr. William J. Brown, attorney general, and Mr. Bradley J. Finn, for appellee.
Appellant contends that Dr. Erwin's opinion was based upon a consideration of conditions not allowed in the claim, and thus, cannot constitute evidence to support the order of the commission. This contention is not supported by Dr. Erwin's report. While the report indicates that Dr. Erwin recognized the existence of unrelated disabilities, it also contains a finding that those disabilities were unrelated to the industrial injury. Dr. Erwin concluded that the claimant had a permanent partial disability of 14 percent "for the allowed injuries in this claim."
It is well-established 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. G F Business Equip., Inc., v. Indus. Comm. (1981), 66 Ohio St.2d 446, 447; quoting from State, ex rel. Haines, v. Indus. Comm. (1972), 29 Ohio St.2d 15, 16. Such an abuse of discretion is shown only where there is no evidence upon which the commission could have based its factual conclusion. State, ex rel. Teece, v. Indus. Comm. (1981), 68 Ohio St.2d 165, 167. We find that the report of Dr. Erwin is evidence to support the commission's finding.
Appellant also argues that it was an abuse of discretion for the commission to rely on the report of Dr. Erwin because it was inconsistent with the report of Dr. Dominic, another Medical Section examiner. In support, it relies on R.C. 4121.38(B), which provides, in part:
"The medical section shall:
"(1) Implement a program of impairment evaluation training for its staff physicians;
(2) Issue a manual of commission policy as to impairment evaluation so as to increase consistency of medical reports. This manual shall be available to the public at cost but shall be provided to all physicians who treat claimants or to whom claimants are referred for evaluation; * * *"
While the purpose of this section is to encourage consistency in medical reports and evaluations, and this court has recognized the commission's duty to carry out its provisions ( State, ex rel. Peeples, v. Farley Paving Co. (1981), 66 Ohio St.2d 106, 108), R.C. 4121.38(B) does not require the result urged by appellant. Just as in State, ex rel. Peeples, supra, "[i]t remains that there was evidence to support the commission's findings" in the case at bar.
Accordingly, the judgment of the Court of Appeals is affirmed.
Judgment affirmed.
CELEBREZZE, C.J., W. BROWN, SWEENEY, LOCHER, HOLMES and KRUPANSKY, JJ., concur.
I concur in the judgment affirming the Court of Appeals' denial of a writ of mandamus. There was reliable, probative and substantial evidence in accordance with the law to support the commission finding and determination that claimant had a permanent partial disability of 14 percent.
There was no evidence on which the commission may rely other than the report of Dr. Erwin finding a permanent partial disability of 14 percent. Our affirmance of the commission finding and the Court of Appeals' decision not to disturb such finding need not rest upon the shaky "some evidence" test. See my concurrence in State, ex rel. Ohio Precision Castings, v. Bohman (1982), 69 Ohio St.2d 391, 395, and my dissent in State, ex rel. Teece, v. Indus. Comm. (1981), 68 Ohio St.2d 165, 170. Since the majority opinion implicitly endorses the "some evidence" tautology, without using that meaningless phrase, I concur in the judgment only.