Opinion
No. 82-1377
Decided June 29, 1983.
Workers' compensation — Quantum of proof necessary to meet "some evidence" standard — One examining physician reported that claimant not permanently and totally disabled.
APPEAL from the Court of Appeals for Franklin County.
On February 22, 1974, Lula B. Taylor, appellant, was injured in the course of and arising out of her employment. Her claim was allowed for contusion of the left hip, left knee, left elbow, left shoulder, and contusion of the skull — left parietal area. Appellant collected temporary total disability benefits for a short time, and on April 21, 1976 was determined to have a permanent partial disability of forty percent. After further medical evaluation, appellant was again found temporarily totally disabled. Benefits were ordered paid from March 4, 1977 to July 3, 1977, to be reconsidered upon submission of medical proof. Appellant's family doctor, Robert E. Slemmer, provided such proof. On March 18, 1980, the claim was amended to include lumbosacral strain.
On May 16, 1980, appellant applied for permanent total disability benefits. She was referred to Dr. W.J. McCloud for examination on July 3, 1980. Dr. McCloud concluded that appellant was not permanently and totally disabled. Appellant was also examined by Dr. George E. Parsons, Ph.D., and Dr. Emily Hess. They both concluded that, factoring appellant's limited intelligence into her physical impairment, she was unable to work and was therefore permanently and totally disabled.
On May 28, 1981, the commission denied appellant's application based on the above-mentioned medical reports. Appellant filed an action in mandamus in the Court of Appeals for Franklin County, seeking that the commission be compelled to find her permanently and totally disabled. The court of appeals denied the writ.
The cause is now before this court upon an appeal as of right.
Messrs. Harris Katz and Mr. Jerald D. Harris, for appellant.
Mr. William J. Brown, attorney general, and Mr. Dennis L. Hufstader, for appellees.
"* * * It is well established that mandamus will not lie where there is some evidence to support the finding of the Industrial Commission." State, ex rel. Anderson, v. Indus. Comm. (1979), 60 Ohio St.2d 106, 108 [24 O.O.3d 187]. Appellant contends that there was no evidence to support the commission's conclusion that she was not permanently and totally disabled. The record shows, however, that at least one examining physician reported that appellant was not permanently and totally disabled. This satisfies the quantum of proof necessary to meet this court's standard. The judgment of the court of appeals is accordingly affirmed.
Judgment affirmed.
CELEBREZZE, C.J., W. BROWN, SWEENEY, LOCHER, HOLMES and J.P. CELEBREZZE, JJ., concur.
I concur in the judgment, but need no help whatever from the vapid "some evidence" shibboleth to reach that result. See State, ex rel. Kilburn, v. Indus. Comm. (1982), 1 Ohio St.3d 103, dissenting opinion at 106. There is reliable, credible evidence — and that should be the yardstick — to support the commission's determination and to affirm the court of appeals.