State ex rel. Consolidation Coal Co. v. Indus. Comm., 94-2708

Decision Date16 April 1997
Docket NumberNo. 94-2708,94-2708
Citation677 N.E.2d 338,78 Ohio St.3d 176
PartiesThe STATE ex rel. CONSOLIDATION COAL COMPANY, Appellant, v. INDUSTRIAL COMMISSION OF OHIO et al., Appellees.
CourtOhio Supreme Court

Hanlon, Duff, Paleudis & Estadt Co., L.P.A., and John G. Paleudis, St. Clairesville, for appellant Consolidation Coal Company.

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

Betty D. Montgomery, Attorney General, and Jeffrey B. Duber, Assistant Attorney General, for appellees Industrial Commission and Administrator, Bureau of Workers' Compensation.

LUNDBERG STRATTON, Justice.

Consolidation seeks a writ of mandamus, alleging that the commission abused its discretion in awarding permanent total disability by improperly relying upon Dr. Fierra's report and by misinterpreting the restrictions contained therein.

In order to successfully challenge an order of the Industrial Commission by mandamus, the relator must demonstrate an abuse of discretion. State ex rel. Burley v. Coil Packing, Inc. (1987), 31 Ohio St.3d 18, 20, 31 OBR 70, 72, 508 N.E.2d 936, 938. If an order is supported by "some evidence," then there is no abuse of discretion. Id.

In this opinion, we reaffirm the proposition that this court's review of a commission's order pursuant to a complaint for a writ of mandamus should be limited to determining whether there is some evidence to support the commission's order. Burley, supra. To go further and assess the credibility of the evidence would place this court "in the role of a 'super commission,' a role never envisioned by either the Ohio Constitution or the General Assembly." Id. at 20, 31 OBR at 72, 508 N.E.2d at 938. Accordingly, we will evaluate the commission's order by the some evidence standard.

Consolidation sets forth five propositions of law arguing that the commission failed to support its order with some evidence. We will address each of Consolidation's propositions separately below.

I. Polio

Consolidation claims that because Dr. Fierra's report did not expressly state that his impairment rating excluded McDaniel's polio, a nonallowed and preexisting condition, its inclusion in the rating must be assumed. As a result, Consolidation argues, polio was improperly factored into McDaniel's percentage of impairment.

The flaw in Consolidation's argument is that it assumes that McDaniel had an impairment or preexisting condition attributable to the polio. Consolidation ignores that McDaniel had worked for years prior to his injuries herein without any effect from his polio. A preexisting condition is not a preexisting disability, where the claimant worked without any apparent problems prior to the injury. State ex rel. Kettering Med. Ctr. v. Wallace (1994), 68 Ohio St.3d 588, 589, 629 N.E.2d 444, 446.

Further, there is no requirement that a physician specifically indicate that a nonallowed condition was not part of his or her conclusion. In the case at bar, Fierra's report attributed McDaniel's impairment to the allowed conditions. There is no legal basis for concluding that the failure to exclude polio means that it was included. Fierra did not attribute any of McDaniel's impairment to his polio despite the fact that he knew of its existence. "[N]onallowed conditions are immaterial, regardless of their severity, as long as the allowed conditions, in and of themselves, prevent sustained remunerative employment." State ex rel. Waddle v. Indus. Comm. (1993), 67 Ohio St.3d 452, 454, 619 N.E.2d 1018, 1020.

Accordingly, it was not an abuse of discretion for the commission to base its order on Fierra's report despite its failure to mention McDaniel's polio.

II. Dr. McCloud's Report

Fierra, in performing his combined-effects review, considered the report of Dr. Jerry McCloud in evaluating McDaniel. Consolidation argues that Fierra misconstrued McCloud's report in assessing the amount of impairment attributable to McDaniel's allowed back conditions. Consolidation specifically cites the following passage from Fierra's report:

"[T]he orthopedic permanent partial impairment, including the permanent partial impairment of 30% recommended by Dr. McCloud and taking into consideration that the claimant returned to work for a substantial period of time following the low back surgery, is 50%."

Consolidation claims that Fierra's report cited McDaniel's favorable response to back surgery, but then inexplicably increased his impairment from thirty percent to fifty percent when McCloud's report indicated only thirty percent impairment.

Fierra's statement is concededly confusing. However, upon closer examination, it becomes clear that McDaniel's allowed condition has two components--cervical and lumbar. McCloud examined McDaniel only for the cervical condition. Thus, his thirty percent rating applied only to McDaniel's cervical condition--not to his cervical and lumbar conditions as Consolidation mistakenly believes. Therefore, Fierra's reliance upon McCloud's report was limited to an assessment of McDaniel's cervical problem. Based on McCloud's report, Fierra then attributed the thirty percent disability to McDaniel's cervical condition. The additional twenty percent impairment was an assessment of McDaniel's lumbar condition made independently of McCloud's report by Fierra and resulted in a fifty percent impairment for McDaniel's back as a whole.

III. Hoover's Report

Fierra reviewed the report of Thomas O. Hoover, Ph.D., a psychologist, and adopted Hoover's assessment of twenty percent permanent psychiatric impairment. Consolidation alleges that Hoover's report, upon which Fierra relied, is so inconsistent that it should be disqualified from consideration. Specifically, Consolidation alleges that Hoover's assessment of a twenty percent permanent partial impairment contradicts his later statement that it was premature to declare that McDaniel had reached maximum medical improvement.

"[T]he non-examining physician is required to expressly accept all the findings of the examining physician, but not the opinion drawn therefrom." State ex rel. Wallace v. Indus. Comm. (1979), 57 Ohio St.2d 55, 59, 11 O.O.3d 216, 219, 386 N.E.2d 1109, 1112. In the case at bar, it was up to Fierra to decide which conclusions to draw from Hoover's report.

More important, in State ex rel. Kaska v. Indus. Comm. (1992), 63 Ohio St.3d 743, 591 N.E.2d 235, this court specifically held that...

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