State, ex rel. Rhodeback v. Johnstown Mfg., Inc.

• Decision Date: 20 August 1986
• Docket Number: No. 85-1670,85-1670
• Citation: 26 Ohio St.3d 115,497 N.E.2d 80
• Parties: , 26 O.B.R. 99 The STATE, ex rel. RHODEBACK, Appellant, v. JOHNSTOWN MFG., INC.; Industrial Commission of Ohio, Appellee.
• Court: Ohio Supreme Court

Page 115

26 Ohio St.3d 115

497 N.E.2d 80, 26 O.B.R. 99

The STATE, ex rel. RHODEBACK, Appellant, v. JOHNSTOWN MFG., INC.; Industrial Commission of Ohio, Appellee.

No. 85-1670.

Supreme Court of Ohio.

Aug. 20, 1986.

On March 15, 1973, appellant, Ava Rhodeback, injured her back while working for Johnstown Mfg., Inc. Appellant applied for, and received, workers' compensation benefits for physical and psychiatric impairments resulting from her injury. On December 23, 1981, appellant filed an application for permanent total disability. The application was supported by reports from appellant's orthopedic surgeon, Dr. Richard M. Ward, and her psychiatrist, Dr. Evan J. Halas. Dr. Ward stated that appellant "has a nerve entrapment syndrome." He concluded, "I don't think there is any question but what [sic] she is totally disabled." Dr. Halas stated appellant "is being treated for chronic depression, which was triggered by her severe and incapacitating back pain resulting from the industrial injury sustained in 1973." Dr. Halas concluded, "I do not feel she will be able to return to gainful employment. I would consider her permanently and totally disabled as to sustained gainful employment."

The Industrial Commission ordered that appellant be examined by its chief medical adviser, Dr. Dwight H. Davies. The commission also requested that appellant's case be evaluated by Dr. William J. McCloud, Dr. Robert L. Turton and Dr. J.A. Hardie. Dr. McCloud examined appellant on July 13, 1982 concerning her orthopedic condition. As a result of that examination, he stated:

" * * * Obviously, she [appellant] is being deceptive in her general physical presentation * * *.

" * * * "It is my opinion that this patient does not demonstrate physical evidence consistant [sic] with considering her permanently and totally impaired."

Dr. McCloud's report did not address appellant's psychiatric impairment. Dr. Turton examined appellant on July 13, 1982 concerning her psychiatric condition. As a result of that examination, he stated:

" * * * The depth of her [appellant's] depression has varied and it appears at this time as if she is partially controlled on medication. I would place her present degree of psychiatric impairment at 15%. * * * I do not feel that the depression is severe enough at this time to interfer [sic] with her ability to wrok [sic] but by history it was in 1977 [sic]."

Dr. Turton did not evaluate the effect of appellant's orthopedic condition on her total impairment. Dr. Hardie did not examine appellant, but reviewed her medical reports and concluded she was not permanently and totally disabled. Dr. Hardie did not expressly adopt the factual findings of one or more of the examining physicians.

Dr. Davies examined appellant on October 19, 1982. He concluded that appellant "does not appear, medically, to be totally impaired as a result of her back and depressive neurosis."

On May 28, 1984, the appellee, Industrial Commission, issued an order, stating:

"That the Commission finds from proof of record that the claimant is not permanently and totally disabled; that therefore the application is denied.

"This finding and order is based on the medical reports of Drs. McCloud, Turton, and Hardie and particularly on the report of Dr. Davies, the evidence in [the] file and/or the evidence adduced at the hearing."

On August 14, 1984, appellant filed a complaint in the court of appeals alleging "there was 'no evidence' before the Industrial Commission of Ohio [upon] which they could base their decision denying Relator Permanent & Total Disability." Appellant prayed for a writ of mandamus directing the commission to award her permanent and total disability. On August 29, 1985, the court issued a writ ordering the commission to vacate its decision that appellant is not permanently and totally disabled and to reconsider the matter in accordance with the court's decision.

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

Michael J. Muldoon, Columbus, for appellant.

Anthony J. Celebrezze, Jr., Atty. Gen., Janet E. Jackson and Sheryl L. Creed, Columbus, for appellee.

PER CURIAM.

It is well-settled that the determination of disputed factual situations is within the jurisdiction of the Industrial Commission and subject to correction by an action in mandamus only upon a showing of abuse of discretion. State ex rel. Haines v. Indus. Comm. (1972), 29 Ohio St.2d 15, 16, 278 N.E.2d 24 . The commission abuses its discretion when there is "no evidence" to support its factual conclusion. State ex rel. Hutton v. Indus. Comm. (1972), 29 Ohio St.2d 9, 278 N.E.2d 34 , syllabus. Thus, the issue in this case is whether there was some evidence in the commission's file to support its factual conclusion that appellant was not permanently and totally disabled.

The commission based its factual conclusion on the medical reports of Drs. McCloud, Turton, Hardie and Davies.

The McCloud and Turton Reports

In State ex rel. Anderson v. Indus. Comm. (1980), 62 Ohio St.2d 166, 168, 404 N.E.2d 153 , the court held that the commission, when determining whether a claimant is permanently and totally disabled, cannot admit an examining physician's report as evidence where the examining physician has not evaluated the combined effect of all conditions for which workers' compensation benefits have been allowed. The commission abused its discretion by admitting the reports of Drs. McCloud and Turton as evidence since neither evaluated the combined effect of appellant's physical and psychiatric conditions. Dr. McCloud did not evaluate the effect of appellant's psychiatric impairment and Dr. Turton did not evaluate the effect of appellant's orthopedic impairment.

The Hardie Report

In State ex rel. Wallace v. Indus. Comm. (1979), 57 Ohio St.2d 55, 59, 386 N.E.2d 1109 , the court held that the commission cannot admit a non-examining physician's report as evidence where the non-examining physician did not expressly adopt the factual findings of an examining physician as the basis for his opinion. The commission abused its discretion by admitting the report of Dr. Hardie, a non-examining physician, as evidence since Dr. Hardie did not expressly adopt the factual findings of an examining physician as the basis for his opinion.

The Davies Report

In Meeks v. Ohio Brass Co. (1984), 10 Ohio St.3d 147, 462 N.E.2d 389, the court noted that the terms "impairment" and "disability" as used by the commission are not synonymous. "Impairment" is a medical term measuring the amount of the claimant's anatomical and/or mental loss of function as a result of an injury or occupational disease. "Disability" is a legal term indicating the effect that the medical impairment has on the claimant's ability to work.

A doctor's opinion as to the degree of a claimant's bodily or mental impairment affords no basis upon which the commission can predicate a determination of the degree of disability. State ex rel. Morris v. Indus. Comm. (1984), 14 Ohio St.3d 38, 471 N.E.2d 465. Since Dr. Davies' report dealt only with the degree of appellant's physical and psychiatric impairment, the commission abused its discretion by considering it as evidence of appellant's disability. There was no competent, credible evidence in the record concerning appellant's disability, and the commission, therefore, had no evidence to support its factual conclusion that appellant was not entitled to permanent total disability.

Accordingly, the judgment of the court of appeals in issuing a writ of mandamus is hereby affirmed. Furthermo...