Opinion
No. 83-942
Decided June 20, 1984.
Workers' compensation — Medical reports — Anderson test applied.
IN MANDAMUS.
Relator, Charles A. Stroup, was injured on May 17, 1966 in the course and scope of his employment with Burns Iron Metal Co. when a stack of automobile frames upon which he was standing shifted and threw him to the ground. His claim was allowed for "contusion [to] left ankle, sprain and strain [of left dorsal and] lumbar area." He was compensated for temporary total disability from the date of his injury through March 30, 1969. He was subsequently compensated for a forty percent permanent partial disability from March 31, 1969 to October 11, 1970, by order of October 15, 1970. This award was followed by compensation for an eighty percent permanent partial disability from October 12, 1970 to April 23, 1972, by order of October 3, 1972. On March 17, 1972 relator applied for recognition of the additional condition, "chronic depression with conversion reaction and lumbar nerve root compression." This condition was allowed by order dated June 5, 1972.
On October 29, 1973 relator filed a motion requesting that he be found permanently and totally disabled as a result of his physical and psychiatric condition. This motion was granted by order of January 8, 1974 effective retroactively beginning October 29, 1971 to continue without suspension unless future facts or circumstances should warrant otherwise.
On April 23, 1979 relator returned to full-time employment. He notified the commission and returned all warrants he received after that date. On August 15, 1979 the commission ordered the returned warrants cancelled and future warrants stopped. Relator continued working until December 26, 1980, his last day of employment to date.
Relator filed a second motion for permanent total disability due to the combined effect of his physical and psychiatric condition on February 18, 1981. In addition, on April 3, 1981 he filed an application to reactivate his claim of temporary total disability upon which Dr. S.R. Lowery, M.D., indicated that relator had originally returned to work against his advice.
By order of April 17, 1981 the commission granted relator's application for temporary total disability and medical treatment. The order awarded compensation to be paid from December 26, 1980 through June 30, 1981 and to continue upon further medical proof. The order also stated, "[f]urther order of * * * [district hearing officer] to hold issue of additional allowances in abeyance until receipt of clarification from Dr. Lowery. * * *
"Decision based on medical reports submitted by Dr. Lowery."
With regard to his motion for permanent total disability, relator was examined by Dr. William J. McCloud, M.D., on April 17, 1981 and Dr. J.R. Van der Veer, M.D., on April 27, 1981. Dr. McCloud concluded that relator, "[did] not present with [ sic] medical evidence consistent with considering him permanently and totally impaired based on the injuries described in this claim."
Dr. Van der Veer, a psychiatrist, concluded that relator's "psychiatric condition represents a disability of approximately 40% temporary/partial," adding that relator, "could gain some considerable improvement with anti-depressant medication."
These doctors' reports, together with those submitted by Dr. Lowery, were examined by the commission's legal section. It was noted that Dr. Lowery did not enunciate any conclusion with regard to relator's percentage of disability, but rather described a number of problems from which relator suffered and stated that they "`seem[ed] to be aggravated by activity and stress.'"
Relator subsequently submitted additional medical reports to the commission. Dr. T.T. Thatcher, D.C., a chiropractor who had undertaken relator's care in July 1981, had filled out four C-84 forms dating from July 10, 1981 to September 13, 1982. On the first form he stated his opinion that relator was "100% totally disabled." On the second form he stated that relator was "presently totally disabled as far as work." On the third form Dr. Thatcher estimated that relator could resume light work on September 1, 1982. On the fourth and final form he estimated that relator could return to regular work on January 2, 1983 and noted that he was getting some relief from treatment.
A hearing was held on September 9, 1982 following which relator submitted a letter written by Dr. Joseph Mann, M.D. who had conducted an earlier examination, to determine relator's extent of disability in an unrelated Social Security claim. Dr. Mann's letter contained his conclusion that relator was permanently and totally disabled based on the combined effect of his physical and psychiatric conditions. Reference was made to a detailed report of his findings, although that report was never submitted to the commission.
On October 25, 1982 the commission denied relator's motion for permanent total disability "based particularly on the medical reports of Drs. McCloud and Vander Veer [ sic], evidence in the file and the evidence adduced at the hearing." Relator commenced this original action in mandamus on June 15, 1983, seeking to vacate the commission's order and grant his motion.
Gallon, Kalniz Ioria Co., L.P.A., Mr. Steven M. Spitler and Mr. Marc G. Williams-Young, for relator.
Mr. Anthony J. Celebrezze, Jr., attorney general, Mr. Lee M. Smith and Mr. Michael L. Squillace, for respondent Industrial Commission.
In State, ex rel. Anderson, v. Indus. Comm. (1980), 62 Ohio St.2d 166, 168 [16 O.O.3d 199], this court found "that where the issue before the commission is whether a claimant is permanently and totally disabled on account of the combined effect of two or more allowed conditions, medical testimony not evaluating the combined effect of those conditions cannot constitute evidence that the claimant is not permanently and totally disabled." Relator argues that the reports of Drs. McCloud and Van der Veer did not evaluate the combined effect of the physical and psychiatric conditions upon which his application was based and that, therefore, they cannot constitute evidence upon which the commission could have based its conclusion that relator was not permanently and totally disabled.
Respondents argue first that the Anderson test does not apply to the reports of Drs. McCloud and Van der Veer, and, in the alternative, that if it does, the reports may still be used to discredit other medical evidence. Respondents vigorously contend that Dr. McCloud's report does, in fact, evaluate the combined effect of relator's allowed conditions. In support of this contention they excerpt several small portions of his report and direct the court's attention to the following: (1) Dr. McCloud notes that relator's claim was allowed for the condition of chronic depression and conversion reaction, (2) he reports that he discussed relator's history with him, (3) he indicates that he reviewed relevant portions of relator's file, and (4) he mentioned that relator suffers from dizziness and black-outs, symptoms which respondents suggest are related to a conversion reaction. From this, respondents reason that Dr. McCloud's conclusion was based upon an evaluation of the combined effect of the allowed conditions.
It is clear that respondents can illustrate only a minimal connection to the psychiatric condition. This court in Anderson rejected a report which, like that of Dr. McCloud, made passing reference to certain allowed conditions. In that case, the report of Dr. Richard Villareal concluded that the claimant suffered from a twenty-five to thirty percent psychiatric disability "above and beyond any physical disability benefits that have been granted her." Id. at 167. Dr. McCloud's report fails the Anderson test.
Respondents also argue that Anderson does not apply to the report of Dr. Van der Veer because he concluded that relator's disability was temporary. It is contended that such a report may always constitute evidence that a claimant is not permanently and totally disabled, even if it does not evaluate the combined effect of two allowed conditions. Although this position is not devoid of logic, the rule in Anderson is clear. Passing the test depends upon the evaluation of the combined effect of two or more allowed conditions presumably because it is understood that the whole may be more than the sum of its parts when determining disability. Therefore, Dr. Van der Veer's report also fails the Anderson test.
Respondents cite the well-established rule that "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, 79 [14 O.O.3d 275]. In the instant case, however, the commission, in its order, stated, "[t]he medical reports of Drs. McCloud and Vander Veer [ sic], were reviewed and evaluated. The findings and order are based particularly on the medical reports of Drs. McCloud and Vander Veer [ sic], evidence in the file and the evidence adduced at the hearing." Respondents argue that even if the reports of Drs. McCloud and Van der Veer are rejected, the record contained nothing to support relator's claim.
A review of the record shows that Dr. Lowery did not express any particular opinion as to the nature and extent of relator's disability but did advise against his returning to work. Dr. Thatcher's reports essentially reflect some degree of recovery culminating in his estimation that relator could return to regular work on January 1, 1983. Both doctors' reports, however, are clearly limited to relator's lumbar injury and therefore cannot constitute evidence under the Anderson test.
Dr. Mann stated that relator was permanently and totally disabled. A report which allegedly would have provided the necessary details to support this opinion was never submitted to the commission. Furthermore, Dr. Mann made only one brief reference to relator's physical condition, such that his report fails the Anderson test.
In State, ex rel. Hughes, v. Indus. Comm. (1982), 1 Ohio St.3d 57, this court held that a medical report finding a claimant permanently and totally disabled due to the combined effect of two allowed conditions may not be discredited by treating, as one report, distinct reports separately evaluating only one of the allowed conditions. That holding is inapposite to the instant case because essentially, all of the evidence presented to the commission on relator's second motion for permanent total disability failed the Anderson test. The commission was nevertheless obligated to make a determination of relator's claim.
Relator alleges that Dr. Nicholas R. DeFronzo evaluated both of relator's allowed conditions and found him to be permanently and totally disabled. This report, however, was not appended to relator's brief before this court and apparently was not submitted to the commission on relator's second motion for permanent total disability. Inasmuch as relator did return to full-time employment after being declared permanently and totally disabled in accordance with Dr. DeFronzo's findings, the commission may reasonably have concluded that relator's condition had improved and that Dr. DeFronzo's dated conclusions were no longer valid.
This court in State, ex rel. Teece, v. Indus. Comm. (1981), 68 Ohio St.2d 165, 168 [22 O.O.3d 400], determined that reports which are themselves insufficient due to application of the rule in anderson may, nevertheless, be used to test the credibility and reliability of other reports. Inasmuch as the findings of Dr. Lowery's report did not address the issue of permanent total disability, and Dr. Mann's conclusion was not supported by specific findings, the commission was entitled to give them little weight. Moreover, because the conclusions of Drs. Lowery and Mann conflict with those of Drs. McCloud and Van der Veer, and considering Dr. Thatcher's most recent conclusion that relator was experiencing some degree of recovery, the commission could reasonably have concluded that relator's condition had improved. Relator failed to meet his burden of proof. The commission's findings will not, therefore, be disturbed. State, ex rel. General Motors Corp., v. Indus. Comm. (1975), 42 Ohio St.2d 278 [71 O.O.2d 255]. The writ prayed for is denied.
Writ denied.
CELEBREZZE, C.J., W. BROWN, SWEENEY, LOCHER, HOLMES and J.P. CELEBREZZE, JJ., concur.
C. BROWN, J., concurs in judgment only.
I am constrained to concur with the majority due to the unfortunate absence from the record of Dr. DeFronzo's report, as explained in footnote 1 of today's decision. Had this report been before this court, the result of this case most likely would have been very different, as it appeared to be the only report which satisfied the Anderson test. Thus, it would have constituted the sole item of evidence upon which the commission could properly have based a decision. Without this crucial report, today's decision to deny relator's writ is virtually inevitable.