State ex rel. Milburn v. Industrial Com'n of Ohio, 85-1623

• Citation: 498 N.E.2d 440,26 Ohio St.3d 119
• Decision Date: 20 August 1986
• Docket Number: No. 85-1623,85-1623
• Parties: , 26 O.B.R. 102 The STATE, ex rel. MILBURN, Appellee, v. INDUSTRIAL COMMISSION OF OHIO et al., Appellants.
• Court: United States State Supreme Court of Ohio

Page 119

26 Ohio St.3d 119

498 N.E.2d 440, 26 O.B.R. 102

The STATE, ex rel. MILBURN, Appellee, v. INDUSTRIAL COMMISSION OF OHIO et al., Appellants.

No. 85-1623.

Supreme Court of Ohio.

Aug. 20, 1986.

R.E. Goforth Co., L.P.A., and James P. Proctor, New Philadelphia, for appellee.

Anthony J. Celebrezze, Jr., Atty. Gen., Gerald H. Waterman and Merl H. Wayman, Columbus, for appellants Industrial Com'n and Administrator.

Day, Ketterer, Raley, Wright & Rybolt, John F. Buchman and Stephen A. Reilly, Canton, for appellant Whitacre-Greer Fireproofing Co.

PER CURIAM.

The law of Ohio is settled that the determination of disputed facts is particularly, and finally, within the jurisdiction of the Industrial Commission. See, e.g., State, ex rel. Hudson, v. Indus. Comm. (1984), 12 Ohio St.3d 169, 465 N.E.2d 1289; State, ex rel. Kokocinski, v. Indus. Comm. (1984), 11 Ohio St.3d 186, 464 N.E.2d 564; State, ex rel. Allerton, v. Indus. Comm. (1982), 69 Ohio St.2d 396, 433 N.E.2d 159 ; and State, ex rel. Haines v. Indus. Comm. (1972), 29 Ohio St.2d 15, 278 N.E.2d 24 .

Our well-settled standard of review is that the commission will be fully upheld where its determination is found to be supported by some evidence. See, e.g., Hudson, supra; Kokocinski, supra; State, ex rel. G F Business Equip., Inc., v. Indus. Comm. (1981), 66 Ohio St.2d 446, 423 N.E.2d 99 ; State, ex rel. Dodson, v. Indus. Comm. (1980), 62 Ohio St.2d 408, 406 N.E.2d 513 ; State, ex rel. Humble, v. Mark Concepts, Inc. (1979), 60 Ohio St.2d 77, 397 N.E.2d 403 ; and State, ex rel. Kramer, v. Indus. Comm. (1979), 59 Ohio St.2d 39, 391 N.E.2d 1015 .

In the case before us, the commission announced particular reliance upon the reports of Drs. D.M. Ceramella, Emmanuel J. Casiano, and William G. Kraus. Dr. Casiano was appellee's treating physician and Dr. Ceramella also filed on appellee's behalf. At the request of the commission, appellee was examined by Dr. Kraus, who submitted a quite extensive report. During the course of therapy, appellee has had his wrist examined by many other doctors, including Drs. Charles J. Paquelet and Joseph J. Leven, whose reports are likewise contained within the file.

Dr. Leven, on March 13, 1981, concluded that appellee had temporary partial impairment of low moderate degree which ought to end within four months. Dr. Paquelet stated, on September 18, 1981, that appellee had a "perfectly normal appearing forearm and hand. * * * He makes a fist, fully extends the fingers. Wrist motion is normal. The grip is poor. * * * He shows by examination a * * * full range of normal motion of the wrist, fingers and thumb. Radiograms are normal."

Dr. Casiano observed swelling of the right forearm. He estimated, however, that the impairment was temporary and that appellee could resume light work at his occupation by December 3, 1981. On November 9, 1981, he changed his estimate to February 9, 1982, and observed no change in condition. The "no change" report was reiterated on November 29, 1982, but the doctor concluded that appellee could resume work within two months.

Finally, Dr. Kraus examined appellee on December 27, 1982. He concluded:

"On the basis of the essentially negative physical examination as well as the negative X-ray examination and the absence of objective physical findings except for the presence of * * * Minimal Swelling * * * as well as a full range of active and passive motion of the right forearm, wrist and hand with minimal pain, I am forced to conclude that this claimant has made a good recovery from the allowed injury * * *.

"Based upon my physical and X-ray findings, I would conclude that this individual is capable of returning to his former employment * * *. In spite of the fact that he continues to complain of some mild discomfort, I do not believe this should prevent him from performing such activity. Therefore, I conclude that * * * this claimant was not temporarily and totally disabled. Based upon my physical findings, his complaints and the X-ray findings, it is my conclusion that this claimant has a low degree of temporary partial disability * * *."

It is evident that all of the examining physicians felt that appellee should be able to return to work to perform a lighter than usual workload in his profession. Although Dr. Casiano, appellee's own treating physician, continued to move ahead his estimation of such return, he too agreed with this prognosis. Further, it is abundantly clear that, despite appellee's claims of mild subjective discomfort, Dr. Kraus' very thorough analysis of the physical indicia fully sufficed to support his conclusion that appellee's disability was so small that it should not inhibit his return to work at his same job. Consequently, we find Dr. Kraus' report as well as particular observations of Drs. Casiano, Paquelet and Leven to substantiate the determination by the commission that appellee was no longer temporarily and totally disabled and that compensation for same should end.

Appellee also asserts that because Dr. Kraus was not appellee's attending physician, appellee is entitled to temporary total disability compensation until such treating physician has made a written statement that appellee is capable of returning to his former position of employment, citing State, ex rel. Ramirez, v. Indus. Comm. (1982), 69 Ohio St.2d 630, 632, 433 N.E.2d 586 . It should be noted that while Dr. Kraus was not appellee's personal physician, he was an examining physician whose conclusions are as fully expert as those of the personal physician. Moreover, R.C. 4123.56 provides: " * * * If the [self-insured] employer disputes the attending physician's report, payments may be terminated only upon application and hearing by a district hearing officer. * * * " This statute provides that the attending physician's findings may be disputed so as to terminate payments. Such dispute would normally be founded in a medical opinion contrary to that of the attending physician and obviously made by another doctor. It is not reasonable, therefore, that an attending physician have the absolute power to determine, alone, whether appellee has recovered. It logically follows, as well, that a hearing officer need not give greater weight to a medical report solely because it is made by the attending physician, but may give the report such weight as he deems appropriate.

Having found some relevant evidence to support the findings of the commission, we accordingly reverse the judgment of the court of appeals and deny the writ.

Judgment reversed and writ denied.

LOCHER, HOLMES and WRIGHT, JJ., concur.

DOUGLAS, J., concurs separately in judgment with opinion.

CELEBREZZE, C.J., and SWEENEY and CLIFFORD F. BROWN, JJ., dissent.

WRIGHT, Justice, concurring.

I concur in the lead opinion and would also like to respond to the concerns expressed by my brethren in dissent. I am confident that every member of this court accepts the premise that the Workers' Compensation Act should be interpreted in a liberal manner. I agree that the commission should continue to give the Act generous application on behalf of injured members of our work force.

Today, in a series of cases, we have reaffirmed the essential function of the commission as the body that should determine the nature and extent of any particular claimant's disability. We as a court should not interfere with the commission's fact-finding function where there is relevant evidence to support the commission's findings. This business of generating irrational and artificial tests that cause the rejection of competent expert testimony simply makes no common sense. The idea that medical evidence must be ignored unless the medical expert expresses an opinion about each and every facet of a claimant's emotional and physical conditions flies in the face of over three centuries of Anglo-American jurisprudence in which the trier of fact has the authority to evaluate the evidence. Thus, I cannot share the disquiet of the minority. Instead I feel our result is consistent with sound jurisprudence.

DOUGLAS, Justice, concurring.

For the reasons stated, where herein pertinent, in my concurring opinion in State, ex rel. Rouch, v. Eagle Tool & Machine Co. (1986), 26 Ohio St.3d 197, 201-217, 498 N.E.2d 464, I concur in the judgment of the court.

CELEBREZZE, Chief Justice, dissenting.

I am in complete agreement with Justice Brown's observations that the reports of Drs. Casiano, Ceramella and Kraus do not constitute probative evidence on which the Industrial Commission could rely in denying appellee Milburn's claim for temporary total disability benefits for the period beginning February 9, 1982.

I am particularly disturbed by the plurality's reliance on, inter alia, the reports of Drs. Leven and Paquelet as supporting the commission's order.

The plurality's construction of its "some evidence rule" is, in my view, an unsatisfactory standard of dubious validity. See State, ex rel. Smith, v. Indus. Comm. (1986), 26 Ohio St.3d 128, 130-134, 498 N.E.2d 447. (Celebrezze, C.J., concurring in part and dissenting in part). The plurality's use of the reports of Drs. Leven and Paquelet in the instant case illustrates the potential for abuse of this "some evidence" rule.

The commission's district hearing officer, in his 1983 order denying appellee temporary total disability benefits, stated that the order was "[b]ased on the medical reports of Drs. Kraus, Casiano and Ceramella." Apparently realizing that those reports offer only weak (at best) evidence in support of that order, the plurality has dredged up two old reports of Drs. Leven and Paquelet, predating the period of claimed disability, which it considers as "some evidence" in support of the commission's order.

Dr. Leven examined appellee on March 13, 1981. His report on appellee's condition at that time is of highly questionable relevance in determining appellee's eligibility for temporary total compensation for a period...