State ex rel. Brady v. Industrial Com'n of Ohio

• Decision Date: 30 December 1986
• Docket Number: No. 86-158,86-158
• Citation: 503 N.E.2d 173,28 OBR 322,28 Ohio St.3d 241
• Parties: , 28 O.B.R. 322 The STATE, ex rel. BRADY, Appellant, v. INDUSTRIAL COMMISSION OF OHIO, Appellee, et al.
• Court: Ohio Supreme Court

Page 241

28 Ohio St.3d 241

503 N.E.2d 173, 28 O.B.R. 322

The STATE, ex rel. BRADY, Appellant, v. INDUSTRIAL COMMISSION OF OHIO, Appellee, et al.

No. 86-158.

Supreme Court of Ohio.

Dec. 30, 1986.

Appellant, Josephine Brady, injured her back while working as a licensed practical nurse at the Bedford Municipal Hospital in February 1978. The Bureau of Workers' Compensation allowed her claim for the condition of "herniated lumbar disc L4" and granted temporary total disability compensation from February 21, 1978 to March 16, 1978, and from March 30, 1978 to September 7, 1978. Brady later applied for permanent and total disability benefits which were denied "based on the medical reports of Drs. Shannon, Tramer, and particularly on the report of Dr. J.Q. Brown, the evidence in [the] file and/or the evidence adduced at the hearing."

The record indicates that Dr. Brown gave appellant a physical examination and reviewed her medical history. He concluded, "I would not consider her to be PTI. I would consider her to have a PTI of moderate degree [i.e.] 45%." Dr. Shannon, appellant's physician, averred that appellant "is totally and permanently disabled." Dr. Tramer, after a comprehensive physical examination of appellant and review of her medical history, opined that appellant "has a 60% permanent partial impairment. She is not totally and permanently disabled."

A mandamus action was commenced in the court of appeals alleging the Industrial Commission had abused its discretion. The writ was denied and an appeal is now before this court upon an appeal as of right.

Edward J. Cox and Edward J. Cox, Jr., Columbus, for appellant.

Anthony J. Celebrezze, Jr., Atty. Gen., and Richard C. Slavin, Columbus, for appellee.

Per Curiam.

For the reasons to follow we affirm the denial of the writ of mandamus.

Only where the record is devoid of some evidence to support the commission's order will an abuse of discretion exist. State, ex rel. Elliott, v. Indus. Comm. (1986), 26 Ohio St.3d 76, 79, 497 N.E.2d 70; State, ex rel Hutton, v. Indus. Comm. (1972), 29 Ohio St.2d 9, 13, 278 N.E.2d 34 .

Appellant presents two theories for recovery. The first is that an examining doctor must present an opinion on whether the claimant can perform remunerative employment or the doctor's testimony is not "evidence." The second theory avers that the commission must address the issue of sustained remunerative employment before being allowed to render a disability determination. We reject both these theories. Appellant would have this court usurp the commission's responsibilities and compel the commission to only accept evidence that supports claimant's position.

The weight to be assigned to conflicting evidence is in the province of the Industrial Commission, not this court. State, ex rel. Elliott, supra, 26 Ohio St.3d at 79, 497 N.E.2d 70. Insofar as some evidence was presented to support the commission's decision, it will not be overturned. State, ex rel. Allerton, v. Indus. Comm. (1982), 69 Ohio St.2d 396, 397, 433 N.E.2d 159 . Moreover, because decisions that come to us from the commission have a presumption of regularity (see, e.g., State, ex rel. Rouch, v. Eagle Tool & Machine Co. [1986], 26 Ohio St.3d 197, 498 N.E.2d 464, concurring opinion by Douglas, J., at 215, 498 N.E.2d 464), we will not compel the commission to specifically, and expressly, disprove every potential basis for compensation, either real or imagined, before we allow a commission decision to stand. The issue of remunerative employment is an aspect of the commission's disability determination and therefore need not be expressly addressed by those individuals, such as examining physicians, who present evidence with respect to levels of impairment. Obviously, if the commission does not find permanent and total disability it has concluded that the claimant is capable of sustained remunerative employment.

This is an action for a writ of mandamus. Thus, the burden is on the relator to show that the commission committed an abuse of discretion. State, ex rel. Morris, v. Indus. Comm. (1984), 14 Ohio St.3d 38, 39, 471 N.E.2d 465. Relator must affirmatively demonstrate that the commission acted from perversity of will, passion, prejudice, partiality or moral delinquency. Relator-appellant has not met her burden.

Accordingly, the judgment of the court of appeals is affirmed and the writ is denied.

Judgment affirmed.

LOCHER, HOLMES and WRIGHT, JJ., concur.

SWEENEY and DOUGLAS, JJ., concur in judgment only.

CELEBREZZE, C.J., dissents.

CLIFFORD F. BROWN, J., dissents, with opinion.

CLIFFORD F. BROWN, Justice, dissenting.

I dissent from today's decision for the following reasons. First, I must voice my vigorous disapproval of the majority's use of the abhorrent "some evidence" jargon. My dislike of this standardless standard has been expressed on many occasions. See ie.g., Meeks v. Ohio Brass Co. (1984), 10 Ohio St.3d 147, 149-150, 462 N.E.2d 389 (Clifford F. Brown, J., concurring). My position remains unchanged. The "some evidence" doubletalk is merely a meaningless rubber stamp used to validate unjust decisions of the Industrial Commission. I cannot concur in its continued use.

Second, the majority opinion ignores certain critical aspects of the evidence which I believe warrant issuance of the writ.

The majority states, correctly, that Dr. J.Q. Brown examined claimant and stated in his report that "I would not consider her to be PTI. I would consider her to have a PTI of moderate degree [i.e.] 45%." What the majority conveniently disregards is that Dr. Brown subsequently repudiated this report when he stated in his deposition that "I don't think this patient could do the type of occupation that she was doing as you've described it in here which is the standard type of work for a licensed practical nurse. * * * " This court has 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."...