Summary
In Rhodeback this court explicitly followed the full import of our holding in Anderson by rejecting commission medical reports in which the physicians did not evaluate the combined effect of the claimant's physical and psychiatric conditions.
Summary of this case from State, ex Rel. Rouch v. Eagle Tool Machine Co.Opinion
No. 85-1670
Decided August 20, 1986.
Worker's compensation — Medical report must evaluate combined effect of all allowed conditions — Non-examining physician must expressly adopt factual findings of an examining physician — "Impairment" and "disability," contrasted — Cause remanded for commission to reexamine the evidence and issues, when.
APPEAL from the Court of Appeals for Franklin County.
On March 15, 1973, appellant, Ava Rhodeback, injured her back while working for Johnstown Mfg., Inc. Appellant applied for, and received, workers' compensation benefits for physical and psychiatric impairments resulting from her injury. On December 23, 1981, appellant filed an application for permanent total disability. The application was supported by reports from appellant's orthopedic surgeon, Dr. Richard M. Ward, and her psychiatrist, Dr. Evan J. Halas. Dr. Ward stated that appellant "has a nerve entrapment syndrome." He concluded, "I don't think there is any question but what [ sic] she is totally disabled." Dr. Halas stated appellant "is being treated for chronic depression, which was triggered by her severe and incapacitating back pain resulting from the industrial injury sustained in 1973." Dr. Halas concluded, "I do not feel she will be able to return to gainful employment. I would consider her permanently and totally disabled as to sustained gainful employment."
The Industrial Commission ordered that appellant be examined by its chief medical adviser, Dr. Dwight H. Davies. The commission also requested that appellant's case be evaluated by Dr. William J. McCloud, Dr. Robert L. Turton and Dr. J.A. Hardie. Dr. McCloud examined appellant on July 13, 1982 concerning her orthopedic condition. As a result of that examination, he stated:
"* * * Obviously, she [appellant] is being deceptive in her general physical presentation * * *.
"* * *
"It is my opinion that this patient does not demonstrate physical evidence consistant [ sic] with considering her permanently and totally impaired."
Dr. McCloud's report did not address appellant's psychiatric impairment. Dr. Turton examined appellant on July 13, 1982 concerning her psychiatric condition. As a result of that examination, he stated:
"* * * The depth of her [appellant's] depression has varied and it appears at this time as if she is partially controlled on medication. I would place her present degree of psychiatric impairment at 15%. * * * I do not feel that the depression is severe enough at this time to interfer [ sic] with her ability to wrok [ sic] but by history it was in 1977 [ sic]."
Dr. Turton did not evaluate the effect of appellant's orthopedic condition on her total impairment. Dr. Hardie did not examine appellant, but reviewed her medical reports and concluded she was not permanently and totally disabled. Dr. Hardie did not expressly adopt the factual findings of one or more of the examining physicians.
Dr. Davies examined appellant on October 19, 1982. He concluded that appellant "does not appear, medically, to be totally impaired as a result of her back and depressive neurosis."
On May 28, 1984, the appellee, Industrial Commission, issued an order, stating:
"That the Commission finds from proof of record that the claimant is not permanently and totally disabled; that therefore the application is denied.
"This finding and order is based on the medical reports of Drs. McCloud, Turton, and Hardie and particularly on the report of Dr. Davies, the evidence in [the] file and/or the evidence adduced at the hearing."
On August 14, 1984, appellant filed a complaint in the court of appeals alleging "there was `no evidence' before the Industrial Commission of Ohio [upon] which they could base their decision denying Relator Permanent Total Disability." Appellant prayed for a writ of mandamus directing the commission to award her permanent and total disability. On August 29, 1985, the court issued a writ ordering the commission to vacate its decision that appellant is not permanently and totally disabled and to reconsider the matter in accordance with the court's decision.
The cause is now before this court upon an appeal as of right.
Michael J. Muldoon, for appellant.
Anthony J. Celebrezze, Jr., attorney general, Janet E. Jackson and Sheryl L. Creed, for appellee.
It is well-settled that the determination of disputed factual situations is within the jurisdiction of the Industrial Commission and subject to correction by an 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]. The commission abuses its discretion when there is "no evidence" to support its factual conclusion. State, ex rel. Hutton, v. Indus. Comm. (1972), 29 Ohio St.2d 9 [58 O.O.2d 66], syllabus. Thus, the issue in this case is whether there was some evidence in the commission's file to support its factual conclusion that appellant was not permanently and totally disabled.
The commission based its factual conclusion on the medical reports of Drs. McCloud, Turton, Hardie and Davies.
The McCloud and Turton Reports
In State, ex rel. Anderson, v. Indus. Comm. (1980), 62 Ohio St.2d 166, 168 [16 O.O.3d 199], the court held that the commission, when determining whether a claimant is permanently and totally disabled, cannot admit an examining physician's report as evidence where the examining physician has not evaluated the combined effect of all conditions for which workers' compensation benefits have been allowed. The commission abused its discretion by admitting the reports of Drs. McCloud and Turton as evidence since neither evaluated the combined effect of appellant's physical and psychiatric conditions. Dr. McCloud did not evaluate the effect of appellant's psychiatric impairment and Dr. Turton did not evaluate the effect of appellant's orthopedic impairment.
The Hardie Report
In State, ex rel. Wallace, v. Indus. Comm. (1979), 57 Ohio St.2d 55, 59 [11 O.O.3d 216], the court held that the commission cannot admit a non-examining physician's report as evidence where the non-examining physician did not expressly adopt the factual findings of an examining physician as the basis for his opinion. The commission abused its discretion by admitting the report of Dr. Hardie, a non-examining physician, as evidence since Dr. Hardie did not expressly adopt the factual findings of an examining physician as the basis for his opinion.
The Davies Report
In Meeks v. Ohio Brass Co. (1984), 10 Ohio St.3d 147, the court noted that the terms "impairment" and "disability" as used by the commission are not synonymous. "Impairment" is a medical term measuring the amount of the claimant's anatomical and/or mental loss of function as a result of an injury or occupational disease. "Disability" is a legal term indicating the effect that the medical impairment has on the claimant's ability to work.
A doctor's opinion as to the degree of a claimant's bodily or mental impairment affords no basis upon which the commission can predicate a determination of the degree of disability. State, ex rel. Morris, v. Indus. Comm. (1984), 14 Ohio St.3d 38. Since Dr. Davies' report dealt only with the degree of appellant's physical and psychiatric impairment, the commission abused its discretion by considering it as evidence of appellant's disability. There was no competent, credible evidence in the record concerning appellant's disability, and the commission, therefore, had no evidence to support its factual conclusion that appellant was not entitled to permanent total disability.
Accordingly, the judgment of the court of appeals in issuing a writ of mandamus is hereby affirmed. Furthermore, we affirm the court of appeals' instructions that the commission shall "vacate its order * * * and * * * reexamine the evidence and issues and enter a new order determining whether * * * [appellant] is permanently and totally disabled, predicated upon the controlling issue [disability] and appropriate evidence considering the combined effects of the allowed [physical and psychiatric] conditions upon * * * [appellant's] ability to work, and to set forth briefly the reason for such determination and the evidence relied upon."
Judgment affirmed.
SWEENEY, LOCHER, HOLMES and DOUGLAS, JJ., concur.
LOCHER, J., concurs with opinion.
WRIGHT, J., concurs in judgment only.
CELEBREZZE, C.J., and C. BROWN, J., concur in part and dissent in part.
I concur with today's result. I do so because, in this instance, the grant of a "limited writ" serves judicial economy. Had we rejected the writ completely, a subsequent writ regarding the relief we now provide would ultimately be granted. In future cases, however, it should be noted that ordinarily only the relief requested should be either denied or granted. Until we adopt clear guidelines on this issue, I am satisfied, at present, in concurring in the per curiam judgment.
I concur in the majority's determination that pursuant to our holdings in State, ex rel. Anderson, v. Indus. Comm. (1980), 62 Ohio St.2d 166 [16 O.O.3d 199], State, ex rel. Wallace, v. Indus. Comm. (1979), 57 Ohio St.2d 55 [11 O.O.3d 216], and State, ex rel. Morris, v. Indus. Comm. (1984), 14 Ohio St.3d 38, the commission's denial of appellant's claim for permanent total disability benefits was an abuse of discretion.
I dissent from the majority's decision to grant only a limited writ of mandamus in this case. Appellant put forth reliable, probative and substantial evidence in support of her claim for permanent total disability benefits and the issue in this case, properly framed, is whether the commission's evidence to the contrary met such standards. State, ex rel. Thompson, v. Fenix Scisson, Inc. (1985), 19 Ohio St.3d 76, syllabus. In view of the complete lack of reliable, probative and substantial evidence to support the commission's determination to deny appellant's claim, a full writ ordering a finding that appellant was permanently and totally disabled should have issued pursuant to Thompson, supra.
C. BROWN, J., concurs in the foregoing opinion.
The majority correctly concludes that there is "no evidence" upon which the Industrial Commission could have properly based its denial of permanent total disability benefits. This is clearly true. However, the majority then proceeds to grant only a limited writ directing the commission to issue an order evaluating the effect of appellant's medical impairment upon her ability to engage in sustained remunerative employment. This is clearly incorrect for the following reasons.
This court has recently held that where there is no evidence upon which the commission could have based its denial of permanent total disability benefits, such denial constitutes an abuse of discretion for which the claimant will be afforded relief in mandamus. State, ex rel. Thompson, v. Fenix Scisson, Inc. (1985), 19 Ohio St.3d 76, syllabus. In Thompson, this court found such an abuse of discretion and issued a full writ directing the commission to find claimant permanently and totally disabled. I see no basis whatsoever for the "limited writ" granted herein. Under Thompson, appellant in this cause is entitled to the issuance of a full writ ordering a finding that she is permanently and totally disabled. This is the relief prayed for in appellant's complaint. This is the relief to which she is entitled. See, also, State, ex rel. Morris, v. Indus. Comm. (1984), 14 Ohio St.3d 38.
CELEBREZZE, C.J., concurs in the foregoing opinion.