State ex rel. Hughes v. Goodyear Tire & Rubber Co.

• Decision Date: 20 August 1986
• Docket Number: No. 85-1928,85-1928
• Citation: 26 Ohio St.3d 71,498 N.E.2d 459,26 OBR 61
• Parties: , 26 O.B.R. 61 The STATE, ex rel. HUGHES, Appellant, v. GOODYEAR TIRE & RUBBER CO. et al., Appellees.
• Court: Ohio Supreme Court

Page 71

26 Ohio St.3d 71

498 N.E.2d 459, 26 O.B.R. 61

The STATE, ex rel. HUGHES, Appellant, v. GOODYEAR TIRE & RUBBER CO. et al., Appellees.

No. 85-1928.

Supreme Court of Ohio.

Aug. 20, 1986.

However, Dr. Giray's psychiatric report did not indicate that he either physically examined relator or expressly accepted all the findings of the examining physicians.

Similarly, Dr. Goold concluded:

"I believe that this neurosis in combination with the physical disability has resulted in permanent and total disability from any gainful employment."

Dr. Goold, a psychiatrist, did not indicate that he conducted a physical examination nor did he expressly adopt the findings of any examining physician in his report.

The commission's determination expressly rested upon the reports of Drs. J.A. Hardie, Timothy J. Fallon, David W. DeMuth and W. Jerry McCloud, as well as the record and evidence adduced at the hearing. Dr. Hardie reviewed relator's claim file and stated, in a report on September 17, 1982:

"All medical reports have been reviewed and I am of the opinion based upon the allowed condition(s) that the claimant is not PT [permanently and totally disabled] for the following reason(s):

"Pertinent medical evaluations do not support a related PT. Claimant can relate, is oriented, has an intact memory, no deterioration in personal grooming and no psychosis. He can ambulate without aids, there is no motor or sensory deficits, no atrophy or weakness. He has minimal reduction in range of motion of the spine and some pain experience at 'extremes of forward flexion.'

"Current impairment (if not PT): 20% (inclusive)."

Dr. Hardie was not an examining physician nor did he expressly adopt the findings of the examining physicians.

Dr. DeMuth, after noting that the purpose of his examination was "to determine permanent total impairment in a definite percentage and to evaluate the totality of the claimant's disability due to the combined effect of his back problem," and after stating that "the physical findings are noted in the chart indicating degenerative joint disease of the lumbosacral spine," concluded, "[i]t is my opinion from the available information that Mr. Hughes shows minimal psychiatric symptoms. He is best described as an adjustment disorder with anxious mood. It is further my opinion that his symptoms would not interfere with his ability to work and I therefore find no psychiatric impairment."

Dr. McCloud indicated that the allowed claim was for "degenerative joint disease of the lumbosacral spine and an adjustment disorder with a depressed mood." He went on to state that he evaluated "him in regards to the conditions allowed in this claim." Dr. McCloud concluded: "I would estimate that he has an overall impairment of 20% of the body as a whole based on his loss of function and reserve as described."

Dr. Fallon reviewed the claim file and noted the findings of Dr. Donald L. Brown that claimant had "a psychiatric problem of 5 to 10% but one which would not preclude work activity," and Dr. DeMuth, who "concurred and described an adjustment disorder with an anxiety component." After a physical examination, Dr. Fallon concluded:

"I feel that from the standpoint of the low back condition that the impairment that exist [sic ] would be approximately a 25% impairment [which] would be considered a permanent partial impairment. He certainly over this period of time has been adequately treated and has achieved maximum stabilization and no further improvement would be expected. In addition I would concur with Dr. Brown's finding of an additional 5 to 10% based on the psychiatric problems."

On October 12, 1984, relator instituted an action in mandamus, in the Court of Appeals for Franklin County, which alleged that the commission abused its discretion and sought an order to compel the commission to find relator entitled to receive permanent total disability compensation. On October 31, 1985, the court of appeals, after reviewing the facts and recommendations provided by a referee, denied the writ.

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

Michael J. Muldoon, Columbus, for appellant.

Vorys, Sater, Seymour & Pease, Robert A. Minor and P. Douglas Barr, Columbus, for appellee Goodyear Tire & Rubber Co.

Anthony J. Celebrezze, Jr., Atty. Gen., Janet E. Jackson and Gerald H. Waterman, Columbus, for appellee Indus. Com'n.

PER CURIAM.

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

Relator is required to show a clear legal right to the relief sought and a clear legal duty on the part of the commission to provide the relief in order for this court to issue a writ of mandamus. State, ex. rel. Pressley, v. Indus. Comm. (1967), 11 Ohio St.2d 141, 228 N.E.2d 631 ; State, ex rel. Elliott, v. Indus. Comm. (1986), 26 Ohio St.3d 76, 497 N.E.2d 70. To show the clear legal right, relator must demonstrate that the commission abused its discretion by entering an order unsupported by some evidence in the record. State, ex rel. Hutton, v. Indus. Comm. (1972), 29 Ohio St.2d 9, 278 N.E.2d 34 ; State, ex rel. Teece, v. Indus. Comm. (1981), 68 Ohio St.2d 165, 429 N.E.2d 433 .

Within the past decade this court has set certain parameters for what constitutes "some evidence" before the commission. In State, ex rel. Anderson, v. Indus. Comm. (1980), 62 Ohio St.2d 166, 168, 404 N.E.2d 153 , we held that a physician's report must assess impairment, in a claim for permanent and total disability on account of the combined effect of two or more allowed conditions, by considering those allowed conditions together. In State, ex rel. Wallace, v. Indus. Comm. (1979), 57 Ohio St.2d 55, 59, 386 N.E.2d 1109 , we indicated that non-examining physicians must expressly accept the findings of the examining physicians, although not necessarily their opinions, prior to rendering their own opinions.

The rules in Anderson and Wallace were consolidated in State, ex rel. Teece, supra. The result was a "combined effect" rule that compelled physicians who actually examined less than all the combined conditions, not only to evaluate the relevant allowed condition(s), but to do so by expressly accepting the findings of the physician or physicians who actually examined the claimant in regard to the other conditions. This position was qualified, however, when we indicated that evidence which might not in itself support or deny a claim could still be used to test the credibility of reports that complied with both Anderson and Wallace. See State, ex rel. Allerton, v. Indus. Comm. (1982), 69 Ohio St.2d 396, 433 N.E.2d 159 (When a doctor finds no evidence of a disability related to psychiatric illness, one of two alleged conditions, the need to evaluate the combined effect of the conditions is obviated.). Importantly, we emphasized our concern that "[q]uestions of credibility and the weight to be given evidence are clearly within the commission's discretionary powers of fact finding." Teece, supra, 68 Ohio St.2d at 169, 429 N.E.2d 433; See, also, State, ex rel. Bevis, v. Coffinberry (1949), 151 Ohio St. 293, 85 N.E.2d 519 ; State, ex rel. Morris, v. Indus. Comm. (1984), 14 Ohio St.3d 38, 471 N.E.2d 465.

A review of the record before us indicates that Drs. Giray, Goold, McCloud, Fallon, and DeMuth all specifically examined claimant as to either the physical or psychological condition but not both. In all these cases it is clear that while the physician might not literally "expressly adopt" the factual findings with respect to conditions outside his field of expertise, each was familiar with those findings to various degrees when he made his evaluation, as indicated in the facts herein.

It is apparent to us today that much confusion has resulted from this court's desire to insure that impairment evaluations be rendered by physicians who were aware of all relevant aspects of a claimant's allowed conditions. We do not suggest, however, that experts...