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

• Decision Date: 25 July 1984
• Docket Number: No. 83-1035,83-1035
• Citation: 12 Ohio St.3d 169,465 N.E.2d 1289
• Parties: , 12 O.B.R. 237 The STATE ex rel. HUDSON, Appellant, v. INDUSTRIAL COMMISSION OF OHIO et al., Appellees.
• Court: Ohio Supreme Court

Page 169

12 Ohio St.3d 169

465 N.E.2d 1289, 12 O.B.R. 237

The STATE ex rel. HUDSON, Appellant, v. INDUSTRIAL COMMISSION OF OHIO et al., Appellees.

No. 83-1035.

Supreme Court of Ohio.

July 25, 1984.

Appellant, A.C. Hudson, was injured on February 20, 1961, while in the course and scope of his employment as a truck driver for appellee Yellow Freight System, Inc. Appellant was chaining down a load on his truck trailer when he slipped and fell off the trailer, injuring his left leg.

Appellant's workers' compensation claim was allowed for "fracture of left tibia and fibula, left leg." He was able to return to work in 1963 and obtained employment in a stockyard for one year. Appellant was then employed as a truck driver from 1964 to 1975, when he was diagnosed as having histoplasmosis in his eyes.

In 1964, appellant was found to have a permanent partial disability of thirty-five percent as a result of the injury to his left leg. His permanent partial disability benefits were raised to fifty-five percent in 1965. In 1977, appellant's claim was amended to include disability to his lower back which was caused by the leg injury.

On March 19, 1979, appellant filed an application with appellee Industrial Commission of Ohio (hereinafter "commission") requesting compensation for permanent total disability. In support of his application, appellant submitted the report of Dr. Richard M. Loeffler.

For purposes of this application, appellant was examined by Drs. Ned B. Hein and Bruce H. Dorman, whose reports were submitted to the commission. It was the opinion of Dr. Hein that appellant could not be employed as a truck driver but that he was capable of other light work, such as sitting at a desk, bookkeeping, or time-keeping. Dr. Dorman stated that appellant was capable of sedentary work.

The matter came on for hearing before the commission on February 9, 1982, at which time appellant was referred to Dr. William Reynolds of the commission's medical section for further examination. Dr. Reynolds found that appellant was unable to return to work as a truck driver and, with his age and fifth-grade education, Hudson's chance of being trained for a sedentary job was remote. On this basis, Dr. Reynolds concluded that appellant was permanently and totally disabled.

Appellant's file was subsequently referred for review to Dr. Paul H. Dillahunt. Based on the reports in the file, Dr. Dillahunt opined that appellant was not suffering from permanent total disability.

On August 3, 1982, the commission denied appellant's motion for compensation for permanent total disability based upon " * * * the medical reports of Dr. Reynolds and Dr. Dillahunt, evidence in the file and evidence adduced at the hearing."

Appellant brought this action in mandamus in the court of appeals alleging that the commission abused its discretion. He sought the issuance of a writ to compel the commission to grant his application for permanent total disability benefits.

The court of appeals denied the writ and the cause is now before this court upon an appeal as of right.

Gallon, Kalniz & Iorio Co., L.P.A., and Dorothy B. McCrory, Toledo, for appellant.

Anthony J. Celebrezze, Jr., Atty. Gen., Douglas M. Kennedy and Lee M. Smith, Columbus, for appellee Industrial Commission.

Eastman & Smith, Richard T. Sargeant and John T. Landwehr, Toledo, for appellee Yellow Freight System, Inc.

PER CURIAM.

The court of appeals stated two reasons for its denial of the writ. First, the court found that the reports of Drs. Hein and Dorman indicated that appellant could do sedentary work and was thus fit for employment. Second, the court found that even if appellant was permanently and totally disabled, there was evidence in the file to support a finding that such disability was due to his unrelated eye condition, rather than the injuries recognized in his claim.

Appellant argues that all the evidence before the commission indicated that he was permanently and totally disabled from the allowed conditions when considered in view of his age, education and transferable skills. We disagree.

This court has consistently recognized that the determination of disputed facts is within the jurisdiction of the commission. It is within the authority of the commission to weigh credible evidence and to make decisions based thereon. State ex rel. Allerton v. Indus. Comm. (1982), 69 Ohio St.2d 396, 433 N.E.2d 159 ; State ex rel. Haines v. Indus. Comm. (1972), 29 Ohio St.2d 15, 278 N.E.2d 24 ; State ex rel. Allied Wheel Products, Inc. v. Indus. Comm. (1956), 166 Ohio St. 47, 139 N.E.2d 41 .

The standard of review used by courts to determine the validity of the commission's findings is not subject to question. Where the record contains some evidence to support the commission's factual findings, such findings will remain undisturbed and are not subject to an action in mandamus. 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 . This court will not reweigh the evidence presented to the commission. State ex rel. Mitchell v. Robbins & Myers, Inc. (1983), 6 Ohio St.3d 481, 453 N.E.2d 721. ¹ See, also, State ex rel. G F Business Equip., Inc., supra; State ex rel. Kilburn v. Indus. Comm. (1982), 1 Ohio St.3d 103, 105, 438 N.E.2d 422.

The record contains some evidence that appellant is not permanently and totally disabled. In fact, the reports of Dr. Hein and Dr. Dorman indicate that appellant is able to do sedentary work. In addition, Dr. Dillahunt stated that appellant is not suffering from permanent and total disability. Therefore, there is some evidence that appellant is fit for employment and the commission did not abuse its discretion in denying his motion for compensation for permanent total disability.

Accordingly, the judgment of the court of appeals is affirmed.

Judgment affirmed.

FRANK D. CELEBREZZE, C.J., and WILLIAM B. BROWN, LOCHER, HOLMES and HOFFMAN, JJ., concur.

SWEENEY and CLIFFORD F. BROWN, JJ., dissent.

HOFFMAN, J., of the Fifth Appellate District, sitting for JAMES P. CELEBREZZE, J.

CLIFFORD F. BROWN, Justice, dissenting.

I dissent because, for the following reasons, I agree with the appellant's contention that all the evidence before the commission indicated that the claimant was permanently and totally disabled from the allowed conditions when considered in view of his age, education and transferable skills.

I first note that the reports of Drs. Hein and Dorman were not specified in the commission's order as being the basis for its decision. In State ex rel. Mitchell v. Robbins & Myers, Inc. (1983)...