448 N.E.2d 1372 (Ohio 1983), 82-648, State ex rel. Paragon v. Industrial Com'n of Ohio

Docket Nº82-648.
Citation448 N.E.2d 1372, 5 Ohio St.3d 72
Opinion JudgePer Curiam.
Party NameThe STATE, ex rel. PARAGON, Appellant, v. INDUSTRIAL COMMISSION OF OHIO, Appellee.
AttorneyJanes & Janes, Charles L. Janes and Douglas J. Maser, Columbus, for appellant. Messrs. Janes & Janes, Mr. Charles L. Janes and Mr. Douglas J. Maser, for appellant., Mr. William J. Brown, attorney general, and Mr. James E. Davidson, for appellee.
Judge PanelFRANK D. CELEBREZZE, C.J., and WILLIAM B. BROWN, SWEENEY and LOCHER, JJ., concur. CLIFFORD F. BROWN and JAMES P. CELEBREZZE, JJ., concur separately. [5 Ohio St.3d 77] HOLMES, J., dissents. CLIFFORD F. BROWN, Justice, concurring.
Case DateMay 25, 1983
CourtSupreme Court of Ohio

Page 1372

448 N.E.2d 1372 (Ohio 1983)

5 Ohio St.3d 72

The STATE, ex rel. PARAGON, Appellant,

v.

INDUSTRIAL COMMISSION OF OHIO, Appellee.

No. 82-648.

Supreme Court of Ohio.

May 25, 1983

Page 1373

[5 Ohio St.3d 73] On July 19, 1969, appellant, William E. Paragon, sustained an injury to his right knee while in the course and scope of his employment with Goodwill Industries of Central Ohio, Inc. As a consequence of this injury, appellant was awarded permanent partial disability benefits totaling thirty-five percent.

In 1976, Dwight M. Palmer, M.D., conducted a physical and mental examination at the request of appellant's counsel. Dr. Palmer diagnosed a psychiatric condition in the form of depressive neurosis, in addition to the knee injury, and he concluded that when the injuries are combined they render appellant "incapable of sustained gainful employment."

In December 1977, appellant filed a motion with the Industrial Commission requesting that the additional condition of depressive neurosis be recognized in his claim. At the request of the commission, appellant was examined by Dr. C.E. Johnston, a psychiatric specialist, who only examined appellant's mental condition. Dr. Johnston concluded that appellant suffers from depressive neurosis of a mild to moderate degree, approximately ten to fifteen percent, "but when super imposed of [sic ] his physical impairment, that one must consider him one hundred percent disabled."

Appellant's file was then referred to Dr. Lon Cordell, Ph.D., a psychological consultant for the commission. Dr. Cordell concluded as follows: "If you take all things

Page 1374

into consideration, especially the mans [sic ] physical impairment there is a good chance that he is totally and permanently impaired. However, if you look at the evidence supporting the psychological impairment alone I would suggest an impairment of not more then [sic ] 10 to 15% for purposes of depression."

In May 1980, the commission recognized the additional condition of depressive neurosis, based upon the medical reports of Drs. Palmer, Johnston and Cordell. On June 30, 1980, appellant filed an application with the commission seeking permanent and total disability benefits. At the commission's request, appellant was examined by Dr. Robert A. Buchholz, a psychiatrist, and by Dr. Patrick A. Cullen, an orthopedic specialist.

Dr. Buchholz conducted a mental examination only, and he concluded: "It is my opinion that it is most probable that when both disabilities are combined that he is considered 100% disabled." Dr. Cullen performed both a physical and neurological examination. He concluded, in part, as follows: "As for his depression problems and psychiatric problems I really would have to go along with the past history that this has him 100% disabled for work. I really don't know."

By order dated March 6, 1981, the commission denied appellant's application, finding from proof of record that he is not permanently and totally disabled. The commission's order was "based on the medical records, evidence in the file and evidence adduced at the hearing."

Thereafter, appellant filed a complaint for a writ of mandamus in the court of appeals requesting that a writ issue to compel the commission to [5 Ohio St.3d 74] enter an order finding him to be permanently and totally disabled. The court of appeals denied the writ.

The cause is now before this court on an appeal as of right.

Janes & Janes, Charles L. Janes and Douglas J. Maser, Columbus, for appellant.

William J. Brown, Atty. Gen., and James E. Davidson, Asst. Atty. Gen., for appellee.

PER CURIAM

It is well-settled that "the determination of disputed factual situations is within the final jurisdiction of the Industrial Commission, and subject to correction by 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, 278 N.E.2d 24 [58 O.O.2d 70]. See, also, State ex rel. Allerton v. Indus. Comm. (1982), 69 Ohio St.2d 396, 433 N.E.2d 159 [23 O.O.3d 358]. Furthermore, where the record contains some evidence which supports the commission's factual findings, those findings will not be disturbed. State ex rel. Humble v. Mark Concepts, Inc. (1979), 60 Ohio St.2d 77, 397 N.E.2d 403 [14 O.O.3d 275]; State ex rel. G F Business Equip., Inc. v. Indus. Comm. (1981), 66 Ohio St.2d 446, 423 N.E.2d 99 [20 O.O.3d 379]; State ex rel. Allerton, supra; State ex rel. Kilburn v. Indus. Comm. (1982), 1 Ohio St.3d 103, 438 N.E.2d 422. Conversely, "[w]here there is no evidence upon which the commission could have based its factual conclusion an abuse of discretion is present and mandamus becomes appropriate." State ex rel. Kramer v. Indus. Comm. (1979), 59 Ohio St.2d 39, at 42, 391 N.E.2d 1015 [13 O.O.3d 30].

Our review of the record indicates that of the five reports contained in the commission file pertaining to appellant's claim for permanent and total disability benefits, all five comply with the directive issued in State ex rel. Anderson v. Indus. Comm. (1980), 62 Ohio St.2d 166, 404 N.E.2d 153 [16 O.O.3d 199]. Therein, this court observed that where the issue before the commission concerns a claimant's application for permanent and total disability benefits, based upon 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." Id. at 168, 404 N.E.2d 153.

The reports of Drs. Buchholz, Johnston and Cordell, however, deviate from the evidentiary

Page 1375

standard enunciated in State ex rel. Wallace v. Indus. Comm. (1979), 57 Ohio St.2d 55, 386 N.E.2d 1109 [11 O.O.3d 216]. Stated briefly, our holding in State ex rel. Wallace requires a non-examining physician, who renders an opinion, to expressly adopt the factual findings of one or more examining physicians, which appear in the record, as the basis for his opinion. This...

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58 practice notes
  • 498 N.E.2d 464 (Ohio 1986), 85-1608, State ex rel. Rouch v. Eagle Tool & Mach. Co.
    • United States
    • Ohio Supreme Court of Ohio
    • September 23, 1986
    ...(1985), 19 Ohio St.3d 76, 482 N.E.2d 1241; State, ex rel. Teece, v. Indus. Comm., supra; State, ex rel. Paragon, v. Indus. Comm. (1983), 5 Ohio St.3d 72, 74, 448 N.E.2d 1372; State, ex rel. Kramer, v. Indus. Comm. (1979), 59 Ohio St.2d 39, 42, 391 N.E.2d 1015 [13 O.O.3d 30]. Recognizing the......
  • 503 N.E.2d 173 (Ohio 1986), 86-158, State ex rel. Brady v. Industrial Com'n of Ohio
    • United States
    • Ohio Supreme Court of Ohio
    • December 30, 1986
    ...rel. Hutt, v. Frick-Gallagher Mfg. Co. (1984), 11 Ohio St.3d 184, 185, 464 N.E.2d 1005; State, ex rel. Paragon, v. Indus. Comm. (1983), 5 Ohio St.3d 72, 76, 448 N.E.2d 1372; State, ex rel. Jennings, v. Indus. Comm., supra, 1 Ohio St.3d at 102, 438 N.E.2d 420. The reports of Dr. Edward W. Sh......
  • 556 N.E.2d 467 (Ohio 1990), 88-2038, State ex rel. Sears, Roebuck & Co. v. Industrial Com'n of Ohio
    • United States
    • Ohio Supreme Court of Ohio
    • July 3, 1990
    ...Diamond Foundry Co. (1987), 29 Ohio St.3d 56, 57-58, 29 OBR 438, 440, 505 N.E.2d 962, 964; State ex rel. Paragon v. Indus. Comm. (1983), 5 Ohio St.3d 72, 74, 5 OBR 127, 128, 448 N.E.2d 1372, 1374. Conversely, an abuse of discretion is present and mandamus will lie when there is no evidence ......
  • 640 N.E.2d 815 (Ohio 1994), 93-705, State ex rel. Eberhardt v. Flxible Corp.
    • United States
    • Ohio Supreme Court of Ohio
    • November 9, 1994
    ...ex rel. Walters v. Indus. Comm. (1985), 20 Ohio St.3d 71 [20 OBR 402, 486 N.E.2d 94]; State ex rel. Paragon v. Indus. Comm. (1983), 5 Ohio St.3d 72 [5 OBR 127, 448 N.E.2d 1372]." Walters and Paragon do not lead to the conclusion advanced by appellants. A proper analysis must begin with......
  • Request a trial to view additional results
58 cases
  • 498 N.E.2d 464 (Ohio 1986), 85-1608, State ex rel. Rouch v. Eagle Tool & Mach. Co.
    • United States
    • Ohio Supreme Court of Ohio
    • September 23, 1986
    ...(1985), 19 Ohio St.3d 76, 482 N.E.2d 1241; State, ex rel. Teece, v. Indus. Comm., supra; State, ex rel. Paragon, v. Indus. Comm. (1983), 5 Ohio St.3d 72, 74, 448 N.E.2d 1372; State, ex rel. Kramer, v. Indus. Comm. (1979), 59 Ohio St.2d 39, 42, 391 N.E.2d 1015 [13 O.O.3d 30]. Recognizing the......
  • 503 N.E.2d 173 (Ohio 1986), 86-158, State ex rel. Brady v. Industrial Com'n of Ohio
    • United States
    • Ohio Supreme Court of Ohio
    • December 30, 1986
    ...rel. Hutt, v. Frick-Gallagher Mfg. Co. (1984), 11 Ohio St.3d 184, 185, 464 N.E.2d 1005; State, ex rel. Paragon, v. Indus. Comm. (1983), 5 Ohio St.3d 72, 76, 448 N.E.2d 1372; State, ex rel. Jennings, v. Indus. Comm., supra, 1 Ohio St.3d at 102, 438 N.E.2d 420. The reports of Dr. Edward W. Sh......
  • 556 N.E.2d 467 (Ohio 1990), 88-2038, State ex rel. Sears, Roebuck & Co. v. Industrial Com'n of Ohio
    • United States
    • Ohio Supreme Court of Ohio
    • July 3, 1990
    ...Diamond Foundry Co. (1987), 29 Ohio St.3d 56, 57-58, 29 OBR 438, 440, 505 N.E.2d 962, 964; State ex rel. Paragon v. Indus. Comm. (1983), 5 Ohio St.3d 72, 74, 5 OBR 127, 128, 448 N.E.2d 1372, 1374. Conversely, an abuse of discretion is present and mandamus will lie when there is no evidence ......
  • 640 N.E.2d 815 (Ohio 1994), 93-705, State ex rel. Eberhardt v. Flxible Corp.
    • United States
    • Ohio Supreme Court of Ohio
    • November 9, 1994
    ...ex rel. Walters v. Indus. Comm. (1985), 20 Ohio St.3d 71 [20 OBR 402, 486 N.E.2d 94]; State ex rel. Paragon v. Indus. Comm. (1983), 5 Ohio St.3d 72 [5 OBR 127, 448 N.E.2d 1372]." Walters and Paragon do not lead to the conclusion advanced by appellants. A proper analysis must begin with......
  • Request a trial to view additional results