Opinion
No. 85-379
Decided January 2, 1986.
Workers' compensation — Finding of no permanent and total disability not an abuse of discretion, when.
APPEAL from the Court of Appeals for Franklin County.
Appellant, Carl L. Walker, fell from a ladder on April 17, 1979 sustaining injury in the course of and arising out of his employment. As a result, his claim for workers' compensation was initially allowed by appellee, Industrial Commission, for injury to the neck, low back, left leg and left shoulder. Subsequently, appellant's claim was additionally allowed for head and thoracic injuries and bladder dysfunction. In December 1982, appellant filed an application for permanent total disability with a supporting report of Dr. Ken G. Knott. Thereafter, appellant was examined by other physicians, including Drs. D.D. Kackley and Gary Wise, at the request of the Industrial Commission and the claim file was reviewed by Dr. James A. Hardie. On November 16, 1983, the Industrial Commission denied the application for permanent total disability benefits "* * * based on the report[s] of Dr. Hardie, Dr. Wise and Dr. Kackley, evidence in the file and evidence adduced at the hearing."
Relevant thereto, Dr. Knott's report dated August 19, 1982, concludes that appellant is permanently and totally disabled. This conclusion is based on appellant's allowed injury conditions except for that of bladder dysfunction. Dr. Knott's objective findings recite that "[r]ange of motion of the cervical spine was restricted by at least 35% in all planes. Range of motion of the lumbosacral spine was limited by at least 40% in all planes."
Dr. Kackley's report is dated January 21, 1983, relative to his examination of the previous day. Dr. Kackley's orthopedic findings are contrary to those of Dr. Knott, noting that "* * * clinical examination is completely within normal limits. There is no way that I can account for any degree of actual orthopedic impairment on the basis of clinical examination today. All findings are within normal limits." Dr. Kackley specifically makes no evaluation, however, of the allowed bladder dysfunction, in concluding that there was only a minimal permanent partial impairment.
Appellant instituted a mandamus action in the court of appeals contending that the commission abused its discretion in finding that he was not permanently and totally disabled. The court of appeals, in denying the writ, found that the reports of Drs. Wise and Hardie, both favorable to the commission, were improper for evidentiary consideration. This left the report of Dr. Knott and the report of Dr. Kackley, both of which did not consider all the allowed conditions, i.e., neither report evaluated the bladder dysfunction in connection with the respective conclusions.
The cause is now before this court upon an appeal as of right.
Michael Shay, for appellant.
Anthony J. Celebrezze, Jr., attorney general, Janet E. Jackson and Sheryl L. Creed, for appellee.
Preliminarily, we make two observations. First, for reason of our resolution herein, it is not necessary that we evaluate the determination by the court of appeals that the reports of Drs. Wise and Hardie, rendered at the request of the commission and favorable thereto, were improper for evidentiary consideration. Secondly, we agree with the appellant and court of appeals that the report of Dr. Knott, opining permanent total disability, while not taking into consideration the appellant's allowed bladder condition, is nonetheless proper for evidentiary consideration and not subject to the combined effect requirement of State, ex rel. Anderson, v. Indus. Comm. (1980), 62 Ohio St.2d 166 [16 O.O.3d 199].
The question then is whether the commission was required to adopt the conclusion of permanent total disability rendered by Dr. Knott, inasmuch as the contrary conclusion rendered by Dr. Kackley did not take into account the appellant's bladder condition and hence does not constitute evidence under Anderson that appellant is not permanently and totally disabled.
Here, as in State, ex rel. Teece, v. Indus. Comm. (1981), 68 Ohio St.2d 165, 169 [22 O.O.3d 400], "* * * there was a conflict in the objective findings of two orthopedic specialists * * *." As we observed in Teece, neither the holding in Anderson nor State, ex rel. Wallace, v. Indus. Comm. (1979), 57 Ohio St.2d 55 [11 O.O.3d 216], "* * * require[s] the commission to accept the factual findings stated in a properly qualified medical report at face value and unquestioningly adopt them as those of the commission." Thus, as in Teece, while the report of Dr. Kackley is insufficient in itself to support or deny permanent total disability, the factual findings therein are relevant and admissible to test the credibility and reliability of the report of Dr. Knott. Again, as noted in Teece, "[t]he determination of disputed factual situations is clearly within the jurisdiction of the commission ( State, ex rel. General Motors Corp., v. Indus. Comm., 42 Ohio St.2d 278, 282-283 [71 O.O.2d 255]) * * *."
For the reason that appellant has failed to establish a clear legal right to a writ of mandamus compelling the commission to grant him permanent and total disability, the judgment of the court of appeals is affirmed.
Judgment affirmed.
CELEBREZZE, C.J., SWEENEY, LOCHER, HOLMES and WRIGHT, JJ., concur.
C. BROWN and DOUGLAS, JJ., concur in judgment only.