Opinion
No. 84-1294
Decided July 3, 1985.
Worker's compensation — Psychiatric impairment — Writ granted, when.
APPEAL from the Court of Appeals for Franklin County.
On October 22, 1970, appellee, Mary Woodard, was injured at her place of employment when a tape machine fell and struck her in the abdomen. A worker's compensation claim was filed and temporary disability benefits were awarded for "abdominal pain * * * [and] contusion [of the] anterior abdominal wall."
On July 23, 1975, appellee filed a motion to have her claim allowed for "depression and anxiety." Later, on October 7, 1975, she also moved that her claim be additionally allowed for "traumatic subluxation of left 4th and 5th costo chondral junctions." Both motions were granted on April 20, 1976 by order of a deputy claims administrator.
Appellee, in July 1980, filed for permanent and total disability benefits. The application was supported by the reports of Drs. V.E. Nonell and Jimmy L. Frazier. Dr. Nonell, in a 1977 psychiatric report, said, "she [appellee] is Involutional Psychotic Depression [ sic], who functions in a rather labile condition and under even minor demands or pressure she decompensates rapidly. She was hospitalized at Dartmouth Behavioral Science Center from 12/16/76 — 1/14/77. She is presently taking anti-psychotic medication (Haldol) and receiving individual psychotherapy at regularly scheduled intervals. Her condition is rather severe and definitely prevents her from engaging in gainful employment consistently. * * * I definitely believe that forcing her to return to work would perpetuate a psychotic decompensation which would require immediate hospitalization."
Dr. Frazier, a medical doctor, in a report dated December 23, 1976, said that since appellee's injury, "her condition has continued to deteriorate with very poor response to treatment. Mrs. Woodard has been hospitalized on multiple occasions for her industrial injury which resulted twice in her having surgery of the left chest wall. During this period she has also required treatment for severe anxiety depression syndrome. She has also been seen in consultation and received treatment from a psychiatrist with no improvement in her condition. * * * She is both mentally and physically unfit for employment. * * * I do not feel she will be able to return to work anytime soon. In fact, it is my medical opinion that she has a 100% total disability."
Appellee was examined by two other doctors at the behest of the Industrial Commission. Dr. G.M. Sastry, a psychiatrist, opined that appellee "is suffering from psychiatric impairment which appears to be partial and permanent. The degree of impairment is about 25% of the whole person. This would be in addition to her physical problems and disability." Dr. J.B. Paley, a medical doctor concluded: "As regards the shoulder, I find no evidence of disability. She [appellee] is tender to palpatation in the chest, but how much of a disability this could be, I am not qualified to state. From review of the file, I would feel that her most disabling situation is her depression-anxiety. I would, therefore, recommend that any disability be based on a psychiatric evaluation, since the other two componants [ sic] are negligible."
Dr. O.O. Royer, a psychologist, also examined appellee. He found, in pertinent part, that she "has little capacity for self-sufficiency and needs the support of other people on even the minor requirements of daily living. She also has little ability to handle adequately interpersonal relationships. * * * [U]nless she exhibits a greater degree of ability when she no longer needs medication, she will not be able to cope with the normal problems which she will have."
Because of the differences between the opinions of Drs. Royer and Sastry, appellee's counsel decided to depose Dr. Sastry. During the deposition, taken September 1, 1981, the following colloquy occurred:
"Q. Doctor, you had an opportunity to read a report dated December 23, 1976 from the lady's treating physician[.] * * * I want to give you a report from Dr. Frazier dated February 1, 1977 wherein he finds that based upon the chest wall pain and the psychiatric condition that he feels the [c]laimant is permanently totally disabled and removed from remunerative gainful employment. Based upon the evidence that was submitted to you by the State of Ohio and taking into consideration the IQ test and the report of Dr. Royer in addition to your psychiatric examination and also considering the fact * * * that this lady has only had a ninth grade education, and * * * that her only work experience has been that of a domestic cleaning houses, working as a nurse's aid for awhile, as a cook and then working for Frigidaire, starting off as a cook and then doing factory work which involved general labor and assembly, would you agree with Dr. Frazier that based upon this lady's chest pain and your findings of the 25% psychiatric impairment that for all intents and purposes she is permanently totally disabled from remunerative gainful employment?
"A. Yes.
"Q. You would agree?
"A. Yes."
Finding a disparity between the conclusions of Drs. Frazier and Paley, appellee's lawyer also deposed Dr. Paley on September 2, 1981. In the course of that proceeding, the following exchange took place:
"Q. Now Doctor, based upon what the Industrial Commission told you her allowed conditions were, based upon the results of your examination and considering that Dr. Sastry (whose deposition was taken yesterday) felt that this lady was permanently relieved from gainful remunerative employment based upon his findings of 25% impairment concerning the psychiatric condition and the chest pain which he felt was due to psychogenic pain syndrome, considering that she is forty-seven years old, dropped out of school in the ninth grade and her only work experience is that of doing domestic work * * * and her last job working at Frigidaire, working as a cook for about a year and then doing factory work * * *[,] would you agree with Dr. Frazier and Dr. Sastry that Mary Woodard is for all intents and purposes removed from remunerative gainful employment and permanently totally disabled as a direct and proximate cause of her industrial injury?
"A. I agree."
The foregoing evidence notwithstanding, on February 1, 1983, the Industrial Commission found that appellee was not permanently and totally disabled. It based its order on the medical reports of Drs. Paley and Sastry "and the evidence in the file and/or the evidence adduced at the hearing."
In State, ex rel. Mitchell, v. Robbins Meyers, Inc. (1983), 6 Ohio St.3d 481, we condemned the use of this homogeneous language. We said at 483-484 that "* * * [c]laimants and employers alike, who appear before the commission, are frequently informed that requested benefits are either being granted or denied based on `the evidence in the file and/or the evidence adduced at the hearing.' * * * [W]e will, when necessary, henceforth grant a writ of mandamus directing the commission to specify the basis of its decision. [Citations omitted.] * * * [T]his court will no longer search the commission's files for `some evidence' to support an order of the commission not otherwise specified as a basis for its decision." We note, however, that in State, ex rel. Hudson, v. Indus. Comm. (1984), 12 Ohio St.3d 169, 171, at fn. 1, we declined to retroactively apply the Mitchell rule. See, also, State, ex rel. Burdette, v. Dayton Walther Corp. (1984), 14 Ohio St.3d 29, 31.
Appellee thereupon commenced a mandamus action in the Court of Appeals for Franklin County seeking to overturn the Industrial Commission's order. The court below allowed the writ. The court said, "[b]ecause the commission has given no reason * * * for its reliance upon Drs. Paley and Sastry, the writ is granted and the commission is ordered to find relator to be permanently and totally disabled because there is an absence of some credible evidence that she is not totally disabled as a result of her injury."
The cause is now before this court upon an appeal as a matter of right.
Cowden, Pfarrer, Crew Becker and Joseph P. Buchanan, for appellant.
E.S. Gallon Assoc. and Richard M. Malone, for appellee.
In State, ex rel. Jennings, v. Indus. Comm. (1982), 1 Ohio St.3d 101, at 102, this court held that "where a medical expert has by deposition testimony, repudiated a conclusion previously made in a medical report, that report cannot constitute evidence to support the order of the commission."
In the instant case, the commission relied upon the reports of Drs. Sastry and Paley. Both doctors, in later deposition testimony, effectively repudiated their earlier findings. Cf. State, ex rel. Kokocinski, v. Indus. Comm. (1984), 11 Ohio St.3d 186.
Moreover, neither report used by the commission to justify its order complies with the rule set forth in the cases of State, ex rel. Anderson, v. Indus. Comm. (1980), 62 Ohio St.2d 166 [16 O.O.3d 199], and State, ex rel. Norman, v. Indus. Comm. (1982), 1 Ohio St.3d 263. Those cases hold 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." Anderson, supra, at 168. "[I]f a physician determines that one is not permanently and totally disabled as the result of one condition, the physician must continue and analyze the additional allowed conditions to determine their combined effect upon the injured worker evaluated. * * * Obviously, one must look at the person as a whole in evaluating whether they can work or not." Norman, supra, at 265.
In the present case, Dr. Sastry addressed appellee's psychiatric problems and nothing more; Dr. Paley addressed appellee's physical problems and nothing more. Under the circumstances, neither doctor's report can constitute evidence on which the Industrial Commission can ground its order.
Apparently, the court of appeals felt that because the written reports failed the Anderson and Norman test, the reports of appellee's doctors constituted the only evidence upon which the commission could rely, and that evidence could only support a finding that appellee was permanently and totally disabled. We agree. Furthermore, the deposition questions put to both Drs. Paley and Sastry take into account the combined effect of appellee's conditions not considered by those doctors in their written reports. The deposition testimony addresses "the person as a whole" and is a reliable indicator of appellee's condition.
Both of appellee's medical specialists, Drs. Nonell and Frazier, each found appellee to be completely impaired based on an evaluation of only one of her infirmities. Under our decision in State, ex rel. Norman, v. Indus. Comm. (1982), 1 Ohio St.3d 263, it was unnecessary for them to make a finding encompassing all of appellee's illnesses. The syllabus in that case reads: "The rule stated in State, ex rel. Anderson, v. Indus. Comm., 62 Ohio St.2d 166 [16 O.O.3d 199], applies only to medical reports which conclude a claimant is not permanently and totally disabled. Where a medical report concludes that a claimant is permanently and totally disabled on the basis of one condition alone, the Anderson test does not preclude use of that report as evidence of claimant's permanent and total disability."
We have repeatedly said that where there is no evidence upon which the Industrial Commission can base its conclusion, mandamus will lie to correct the resulting abuse of discretion. See, e.g., State, ex rel. Kramer, v. Indus. Comm. (1979), 59 Ohio St.2d 39, 42 [13 O.O.3d 30]; State, ex rel. Kokocinski, supra, at 188. Such circumstances exist here, and thus, the judgment of the court of appeals is affirmed and the writ of mandamus is allowed.
Judgment affirmed and writ allowed.
CELEBREZZE, C.J., SWEENEY, LOCHER, HOLMES, C. BROWN, DOUGLAS and WRIGHT, JJ., concur.