State ex rel. Stanadyne, Inc., Western Div. v. Industrial Com'n of Ohio

• Court: Ohio Supreme Court
• Writing for the Court: PER CURIAM; FRANK D. CELEBREZZE
• Citation: State ex rel. Stanadyne, Inc., Western Div. v. Industrial Com'n of Ohio, 465 N.E.2d 418, 12 Ohio St.3d 62 (Ohio 1984)
• Decision Date: 03 July 1984
• Docket Number: No. 83-721,83-721
• Parties: , 12 O.B.R. 53 The STATE, ex rel. STANADYNE, INC., WESTERN DIVISION, Appellant, v. INDUSTRIAL COMMISSION OF OHIO et al., Appellees.

Page 62

12 Ohio St.3d 62

465 N.E.2d 418, 12 O.B.R. 53

The STATE, ex rel. STANADYNE, INC., WESTERN DIVISION, Appellant, v. INDUSTRIAL COMMISSION OF OHIO et al., Appellees.

No. 83-721.

Supreme Court of Ohio.

July 3, 1984.

Schwartz, Einhart & Simerka and Gregory P. Szuter, Cleveland, for appellant.

Anthony J. Celebrezze, Jr., Atty. Gen., and Bradley J. Finn, Asst. Atty. Gen., for appellee Indus. Com'n.

Weiner, Orkin, Abbate & Suit Co., L.P.A., and Carol D. Strassman, Beachwood, for appellee Burkhard.

PER CURIAM.

This court has often stated that " * * * the determination of disputed factual situations is within the final jurisdiction of the Industrial Commission, and subject to correction by 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 [58 O.O.2d 70]. See, also, State, ex rel. Griffin, v. Indus. Comm. (1982), 70 Ohio St.2d 264, 265, 436 N.E.2d 1039 [24 O.O.3d 348]; State, ex rel. Paragon, v. Indus. Comm. (1983), 5 Ohio St.3d 72, 74, 448 N.E.2d 1372. An abuse of discretion is present only where there is no evidence upon which the commission could have based its factual conclusion. State, ex rel. Teece, v. Indus. Comm. (1981), 68 Ohio St.2d 165, 167, 429 N.E.2d 433 [22 O.O.3d 400]; State, ex rel. Kramer, v. Indus. Comm. (1979), 59 Ohio St.2d 39, 42, 391 N.E.2d 1015 [13 O.O.3d 30].

Appellant contends that the commission abused its discretion when Burkhard's percentage of permanent partial disability was increased based upon the medical reports of Drs. Levine and Fierra. Specifically, appellant maintains that these reports cannot constitute evidence to support the commission's order since the examining physicians included in their impairment evaluations a non-work related disc injury which plagues the claimant.

It is well-established that in order to be eligible for workers' compensation benefits, " * * * there must be a causal connection between an injury arising out of and in the course of a workers' employment and his harm or disability * * *." Gilbert v. Midland-Ross (1981), 67 Ohio St.2d 267, 270, 423 N.E.2d 847 [21 O.O.3d 168]. See, also, Fox v. Indus. Comm. (1955), 162 Ohio St. 569, 125 N.E.2d 1 [55 O.O. 472]. Contrary to appellant's contentions, however, the medical reports, upon which the increase in permanent partial disability benefits was predicated, consider only previously allowed conditions.

For example, Dr. Levine's report provides, in pertinent part:

"Mr. Burkhard is suffering from residuals of bilateral corneal burns. He has a chronic myofascitis involving the upper back, especially on the right side and he suffers from residuals of an injury to his right knee with pain, stiffness and swelling of the knee. He has a permanent partial disability of 45% of the body as a whole resulting from his multiple injuries."

It is noteworthy that nowhere in this report is there any mention of the fact that the degeneration of a particular disc is attributable to the claimant's disability. Likewise, Dr. Fierra's report, which, on its face, evaluates only those conditions previously recognized by the commission, makes no mention, whatsoever, of any disc-related disability in concluding that a five percent increase in permanent partial disability was present.

Accordingly, we conclude that the commission was entitled to rely upon the reports of Drs. Levine and Fierra. Cf. State, ex rel. Questor Corp., v. Indus. Comm. (1982), 70 Ohio St.2d 240, 436 N.E.2d 1022 [24 O.O.3d 334]. Moreover, as cogently recognized by the court of appeals, if appellant was concerned about whether the conclusions of Drs. Levine and Fierra were predicated, in part, upon a non-work related injury, then a request could have been made to take the depositions of these physicians. See Ohio Adm.Code 4121-3-09(B)(5). ¹ The record demonstrates, however, that such a request was not made.

Therefore, since the commission's decision is in accordance with the evidence upon which it was entitled to rely in increasing the percentage of permanent partial disability, an abuse of discretion has not been demonstrated and the decision will not be disturbed.

For the foregoing reasons, the judgment of the court of appeals denying the writ is affirmed.

FRANK D. CELEBREZZE, C.J., and WILLIAM B. BROWN, SWEENEY, LOCHER, HOLMES, CLIFFORD F. BROWN and JAMES P. CELEBREZZE, JJ., concur.

1 Ohio Adm.Code 4121-3-09(B) provides, in part, as follows:

"(5) Procedure for obtaining the deposition of an examining...