State ex rel. Teece v. Industrial Commission of Ohio

Decision Date23 December 1981
Docket NumberNo. 81-472,81-472
Citation429 N.E.2d 433,22 O.O.3d 400,68 Ohio St.2d 165
Parties, 22 O.O.3d 400 The STATE, ex rel. TEECE, Appellant, v. INDUSTRIAL COMMISSION OF OHIO et al., Appellees.
CourtOhio Supreme Court

Ward, Kaps, Bainbridge, Maurer, Bloomfield & Melvin and Robert L. Bridges, Columbus, for appellant.

William J. Brown, Atty. Gen. and Nancy Miller, Columbus, for appellee Industrial Commission.

Schwartz, Einhart & Simerka and Gregory P. Szuter, Cleveland, for appellee Standard Screw Company.

PER CURIAM.

A writ of mandamus is an extraordinary remedy, and the burden of showing a clear legal right to this writ as a remedy from a determination by the Industrial Commission of the extent of claimant's injury is upon relator. See, generally, State ex rel. Pressley v. Indus. Comm. (1967), 11 Ohio St.2d 141, 228 N.E.2d 631. "It is well established that mandamus will not lie where there is some evidence to support the finding of the Industrial Commission. See State ex rel. Mees v. Indus. Comm. (1972), 29 Ohio St.2d 128 (279 N.E.2d 861). Where there is no evidence upon which the commission could have based its factual conclusion an abuse of discretion is present and mandamus becomes appropriate. State ex rel. Hutton v. Indus. Comm. (1972), 29 Ohio St.2d 9 (278 N.E.2d 34)." State ex rel. Kramer v. Indus. Comm. (1979), 59 Ohio St.2d 39, 42, 391 N.E.2d 1015.

In essence, relator-appellant argues that the commission abused its discretion in denying her claim for permanent and total disability in that there was no evidence before the commission that she was not so disabled.

This court agrees with appellant that the report of Dr. Kessler constitutes evidence that the claimant is permanently and totally disabled since it complied with the requirements set forth in State ex rel. Anderson v. Indus. Comm. (1980), 62 Ohio St.2d 166, 404 N.E.2d 153, that where a claimant's application for permanent and total disability compensation is based on two or more conditions which have been allowed by the commission, medical testimony must take into account the combined effects of these conditions in determining disability. 1 We further agree with appellant that, based on State, ex rel. Anderson, v. Indus. Comm., the medical report of Dr. McCloud cannot constitute evidence to support the commission's finding that appellant is not permanently and totally disabled, for the report failed to consider her psychological condition which had been previously allowed by the commission. 2

The reports of both psychiatrists likewise cannot, by themselves, be considered evidence upon which the commission could base its final orders. Neither Dr. Giray nor Dr. Horwitz examined appellant as to her elbow and back injuries, and hence were non-examining physicians as to those injuries. (See State ex rel. Wallace v. Indus. Comm. (1979), 57 Ohio St.2d 55, 386 N.E.2d 1109.) This court's holding in State ex rel. Wallace v. Indus. Comm. requires a non-examining physician to expressly adopt the factual findings of all examining physicians which appear in the record as the basis of his opinion. Since neither report expressly adopted the factual findings of those who actually examined appellant, they cannot constitute evidence upon which the commission may rely.

While the evidence in the reports of Drs. McCloud, Horwitz and Giray is insufficient in itself to support or deny a claim for permanent and total disability, it is nonetheless relevant and admissible. In Fox v. Indus. Comm. (1955), 162 Ohio St. 569, 577, 125 N.E.2d 1, this court held that " * * * evidence is relevant and admissible if it tends to prove a certain element of an ultimate fact even though it does not tend to establish all elements of the ultimate fact necessary to be proved; and evidence is relevant and admissible if it tends to corroborate evidence of certain but not all elements of a necessary ultimate fact. * * * "

Thus, the Court of Appeals did not err in finding that the commission could use the factual findings contained in these reports to test the credibility and reliability of the report of Dr. Kessler, the only report herein that complied with the tests set forth in State ex rel. Anderson v. Indus. Comm. and State ex rel. Wallace v. Indus. Comm., supra, that appellant was permanently and totally disabled. The determination of disputed factual situations is clearly within the jurisdiction of the commission (State ex rel. General Motors Corp. v. Indus. Comm. (1975), 42 Ohio St.2d 278, 282-283, 328 N.E.2d 387), and since there was a conflict in the objective findings of the two orthopedic specialists, 3 the commission had reason either to doubt the validity of Dr. Kessler's findings or to conclude that appellant's condition had improved since the time of examination. " ' * * * (W)here the record contains some evidence to support the commission's factual findings, these findings will not be disturbed. State ex rel. General Motors Corp. v. Indus. Comm. (1975), 42 Ohio St.2d 278, 283 (328 N.E.2d 387), State ex rel. Capital City Excavating Co. v. Indus. Comm. (1978), 54 Ohio St.2d 184, 188-189 (375 N.E.2d 778).' " State ex rel. Dodson v. Indus. Comm. (1980), 62 Ohio St.2d 408, 410, 406 N.E.2d 513.

The holdings in State, ex rel. Anderson, v. Indus. Comm. and State ex rel. Wallace v. Indus. Comm., supra, do not require the commission to accept the factual findings stated in a properly qualified medical report at face value and unquestioningly adopt them as those of the commission. To do so would be tantamount to allowing a physician to determine disability rather than the commission. Questions of credibility and the weight to be given evidence are clearly within the commission's discretionary powers of fact finding. See, generally, State ex rel. Shelton v. Indus. Comm. (1929), 121 Ohio St. 41, 166 N.E. 893, State ex rel. Ohio Bell Telephone Co. v. Krise (1975), 42 Ohio St.2d 247, 327 N.E.2d 756.

Since appellant failed to establish a clear legal right to a writ of mandamus compelling the commission to grant her permanent and total disability, the judgment of the Court of Appeals is affirmed.

Judgment affirmed.

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

CLIFFORD F. BROWN, Justice, dissenting.

The majority decision thoroughly and correctly summarizes the procedural sequence of this claim for permanent and total disability. The nature and content of the medical reports of the four doctors are generally well analyzed. 4 However, the discussion of Dr. Giray's medical report is incomplete, not recognizing the probative value I believe it should be accorded. Since Dr. Giray's report corroborates that of Dr. Kessler, a finding of permanent and total disability is justified. Therefore, I dissent.

The medical report of Dr. Giray, following a psychiatric evaluation, found relator totally and permanently disabled, based upon both her physical injuries and her "neurosis." 5 The Court of Appeals concluded that Dr. Giray's report was disqualified because he did not examine relator concerning her elbow and back injuries, so that his opinion as to those injuries was that of a non-examining physician, which opinion can not be accepted under the test announced in State ex rel. Wallace v. Indus. Comm. (1979), 57 Ohio St.2d 55, 386 N.E.2d 1109.

I disagree with the Court of Appeals that Dr. Giray was a non-examining physician; rather, I conclude he fulfills the test announced in Wallace. Dr. Giray personally examined relator in his office. As a psychiatrist, he does not become a non-examining physician merely because the physical conditions examined do not relate to his area of specialization. Dr. Giray, as a licensed physician, was clearly competent to consider relator's physical as well as emotional disabilities. The Court of Appeals erred in failing to consider Dr. Giray's medical report as competent evidence. Finding Dr. Giray to be an examining physician, his report constitutes competent medical evidence. That evidence completely corroborates Dr. Kessler's determination of permanent and total disability.

The majority opinion correctly observes that the reports of Drs. McCloud and Horwitz "cannot constitute evidence to support the commission's finding that appellant is not permanently and totally disabled" and "cannot constitute evidence upon which the commission may rely." The only logical conclusion is that the sole medical evidence upon which the commission may rely is the uncontradicted medical report of Dr. Kessler, finding relator permanently and totally disabled.

However, this court decides that the reports of Drs. McCloud and Horwitz, although these were not evidence "to support the commission's finding" and are not "evidence upon which the commission may rely," are still "relevant and admissible" and constitute "some evidence" that relator is not permanently and totally disabled, citing State ex rel. General Motors Corp. v. Indus. Comm. (1975), 42 Ohio St.2d 278, 283, 328 N.E.2d 387; State ex rel. Capital City Excavating Co. v. Indus. Comm. (1978), 54 Ohio St.2d 184, 188-189, 375 N.E.2d 778; State ex rel. Dodson v. Indus. Comm. (1980), 62 Ohio St.2d 408, 410, 406 N.E.2d 513.

This kind of convoluted dialogue is self contradicting. It is another way of stating that no evidence is some evidence. Considerable mental flexibility and dexterity is required even to grasp, let alone accept, such a proposition.

The unjust result reached by the Industrial Commission stems from the "some evidence" rule which grew like Topsy, uncontrolled and unexplained.

This court enunciated the "some evidence" rule in Dodson, supra, citing three earlier cases, State ex rel. Humble v. Mark Concepts, Inc. (1979), 60 Ohio St.2d 77, 397 N.E.2d 403; State ex rel. Capital City Excavating Co. v. Indus. Comm., supra; and State ex rel. General Motors Corp. v. Indus. Comm., supra.

The Dodson opinion extracts the "some evidence" rule out of context from...

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